Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealPartially AllowedCivil Application No. NAI 43 of 2014· [2015] KECA 839 (KLR)

Pan Africa Life Assuarance Ltd v Carolyne Chegero Vereso [2015] KECA 839 (KLR)

Court of Appeal
27 March 2015
1,180 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

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

#
This is a ruling of the Court of Appeal at Nairobi (Nambuye, Koome and M'inoti, JJ.A.) on a Notice of Motion dated 4th March 2014 by Pan Africa Life Assurance Ltd seeking to strike out a Notice of Appeal lodged on 14th January 2014 by Carolyne Chegero Vereso. The notice followed the Industrial Court's dismissal of her claim for unlawful termination, service pay, twelve months' compensation, severance pay and damages. The applicant contended that rule 77 of the Court of Appeal Rules required service of the Notice of Appeal within 7 days of lodgment, but service occurred on 4th February 2014, 21 days later. The respondent filed no replying affidavit, no grounds of opposition, and did not appear at the hearing, so the application proceeded undefended. The court found the record bore out the defective service and that the respondent had, for over a year, neither explained the non-compliance nor invoked rule 4 to seek extension of time. Drawing on its prior decisions in Westmont Power, Kenya Commercial Finance and Kantaria, the court held that sections 3A and 3B of the Appellate Jurisdiction Act do not excuse any and every procedural default; a foundation must be laid for the exercise of discretion under the overriding objective. Allowing the Motion, the court struck out the Notice of Appeal and awarded the applicant costs. The Industrial Court judgment of 17th December 2013 thus stands undisturbed, and the intended appeal is at an end.

Key legal issues

#
01

Effect of failure to serve a Notice of Appeal within 7 days of lodgment under rule 77 of the Court of Appeal Rules

Holding

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.

Reasoning

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.

p. 3
02

Limits of the overriding objective (sections 3A and 3B, Appellate Jurisdiction Act) as a cure for procedural default

Holding

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.

Reasoning

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.

p. 2

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. 1.The applicant's Notice of Motion dated 4th March 2014 is allowed
  2. 2.The Notice of Appeal dated 13th January 2014 and lodged on 14th January 2014 is struck out
  3. 3.The applicant is awarded costs of the application

Authorities

#

Legislation

  • Appellate Jurisdiction Actsections 3A and 3B
  • Court of Appeal Rulesrule 77
  • Court of Appeal Rulesrule 84
  • Court of Appeal Rulesrule 4

Cases cited (3)

  • Westmont Power (K) Ltd v Commissioner of Income Tax
    CA No. 128 of 2006
  • Kenya Commercial Finance Co. Ltd v Richard Akwesera Onditi
    CA No. Nai. 329 of 2009
  • Mradura Suresh Kantaria v Suresh Nanalal Kantaria
    CA No. 277 of 2005
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.