Pan Africa Life Assuarance Ltd v Carolyne Chegero Vereso [2015] KECA 839 (KLR)
The bottom line
#Kenya's Court of Appeal struck out an appeal notice served 21 days late, confirming procedural rules can't be ignored by vaguely invoking the 'overriding objective'.
What this practically means
#Executive summary
#Key legal issues
#Effect of failure to serve a Notice of Appeal within 7 days of lodgment under rule 77 of the Court of Appeal Rules
Failure to serve the Notice of Appeal within the prescribed time, without explanation and without any application for extension of time, is a fatal defect warranting striking out of the Notice of Appeal under rule 84.
The record showed the Notice of Appeal lodged 14th January 2014 was served only on 4th February 2014, 21 days later. The respondent filed nothing in opposition, appeared neither in person nor by counsel, and for over a year made no attempt to cure the defect despite rule 4 affording that option. The court was satisfied the Motion was well founded and merited and struck out the Notice of Appeal with costs to the applicant.
Limits of the overriding objective (sections 3A and 3B, Appellate Jurisdiction Act) as a cure for procedural default
The overriding objective does not excuse non-compliance with appellate procedure where the defaulting party lays no foundation for the exercise of the court's discretion in its favour.
Relying on its prior decisions in Westmont Power, Kenya Commercial Finance and Kantaria, the court held that sections 3A and 3B do not sweep away established principles and cannot be waved as a panacea for all procedural failings. The respondent placed absolutely nothing before the court to enable it, consistently with the overriding objective, to exercise discretion in her favour.
Legal principles established
#- Sections 3A and 3B of the Appellate Jurisdiction Act cannot be invoked as a matter of course to excuse any failure to comply with the rules regulating appeals to the Court of Appeal; a party seeking the court's indulgence under the overriding objective must lay a foundation for it.
Court orders
#- 1.The applicant's Notice of Motion dated 4th March 2014 is allowed
- 2.The Notice of Appeal dated 13th January 2014 and lodged on 14th January 2014 is struck out
- 3.The applicant is awarded costs of the application
- On appeal from
- Industrial Court of Kenya at Nairobi
- I.C.C. No. 2170 of 2012
- Jurisdiction invoked
- Sections 3A and 3B of the Appellate Jurisdiction Act and rules 77 and 84 of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Pan Africa Life Assuarance Ltd v Carolyne Chegero Vereso [2015] KECA 839 (KLR)", Case Analysis (2015). Civil Application No. NAI 43 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/839/eng@2015-03-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.