Naomi Lina Were & Christina Were v National Social Security Fund [ (Civil Application 46 of 2013) (Civ) [2014] KECA 576 (KLR)
The bottom line
#Kenya's Court of Appeal refused to forgive a missed appeal deadline because the applicants had no valid notice of appeal and offered no good excuse for the delay.
What this practically means
#Executive summary
#Key legal issues
#Whether a record of appeal can be filed where there is no competent notice of appeal
Where the notice of appeal was filed out of time without leave, no competent notice of appeal exists and an application for leave to file a record of appeal is incompetent.
Counsel for the applicants conceded that the notice of appeal should have been filed within 14 days of the ruling and was in fact filed out of time without leave. As there was no competent notice of appeal, the Court held that the question of filing a record of appeal did not arise, notwithstanding the application seeking leave to file a memorandum and record of appeal out of time.
Whether Article 159(2)(d) justifies excusing procedural non-compliance in an extension-of-time application
The applicants' reliance on Article 159(2)(d) did not assist them where rules 75, 77 and 82 had not been complied with and where the delay was inordinate and unexplained.
The respondent argued that Article 159(2)(d) does not oust substantive law or rules of procedure. The Court found that the applicants had not complied with rules 75, 77 and 82, resulting in no valid notice of appeal; even if a valid notice existed, the delay was inordinate with culpable laches and no plausible explanation, so the applicants did not deserve the orders sought.
The scope of the Court's discretion under rule 4 to extend time
The Court has unfettered power under rule 4 to extend time, but the discretion must be exercised judicially to serve justice.
The Court reiterated that rule 4 confers an unfettered power to extend time for doing any act required by the Rules, whether before or after the doing of the act, and that this discretionary power is to be exercised judicially with the object of serving justice to the parties. However, the policy of sustaining an appeal could not apply because no competent appeal existed.
Legal principles established
#- The discretionary power under rule 4 to extend time must be exercised judicially, and where there is no valid notice of appeal, no record of appeal can be filed; the Court's policy is to sustain an appeal but only where a competent appeal exists.
- A notice of appeal must be filed and served within the prescribed time under rules 75 and 77; without a valid notice of appeal an application for leave to file a record of appeal is misconceived.
Court orders
#- 1.The application dated 14th February 2013 for leave to file a memorandum of appeal and record of appeal out of time is dismissed
- 2.The applicants shall pay the costs of the respondents
- On appeal from
- High Court of Kenya at Nairobi
- Succession Cause No. 789 of 2003
- Jurisdiction invoked
- Rule 4 and rule 53 of the Court of Appeal Rules (extension of time, single Judge in chambers)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Naomi Lina Were & Christina Were v National Social Security Fund [ (Civil Application 46 of 2013) (Civ) [2014] KECA 576 (KLR)", Case Analysis (2014). Application dated 14th February 2013 arising from Succession Cause No. 789 of 2003. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/576/eng@2014-05-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.