Kenya Union Commercial, Food and Allied Workers v Keroche Industries Limited & 3 others [2017] KECA 209 (KLR)
The bottom line
#Kenya's Court of Appeal struck out an appeal notice filed late without leave, confirming the 14-day appeal deadline is fatal if missed.
What this practically means
#Executive summary
#Key legal issues
#Effect of failure to lodge a notice of appeal within 14 days
The notice of appeal filed out of time and without leave is incompetent, null and void ab initio and liable to be struck out
Rule 75(1) and (2) of the Court of Appeal Rules requires a notice of appeal to be lodged within fourteen days of the decision appealed against. The respondents lodged their notice almost one month after the expiry of that period and without leave. Non-compliance with rule 75 is a core requirement, the foundation stone of the appellate process, and is fatal; it is not a mere procedural technicality curable under Article 159, unlike non-compliance with rule 82.
Whether non-compliance with rule 82 (applying for typed proceedings within 30 days) vitiates an appeal
Non-compliance with rule 82 may be excused as a mere procedural technicality curable under Article 159 or by the court's inherent power
The respondents applied for typed proceedings six days after the expiry of the 30-day period in rule 82. The court distinguished this from breach of rule 75, holding that rule 82 non-compliance may be treated as a mere procedural technicality curable under Article 159 of the Constitution or excusable in the exercise of the court's inherent power, whereas rule 75 non-compliance is fatal.
Abuse of the appellate process
The appellate process exists solely for the vindication of the rights of serious litigants, and a notice of appeal initiated merely to inconvenience the successful party may be struck out
The court expressed displeasure at the respondents' conduct, finding the purported appellate process was apparently initiated solely to inconvenience and cause hardship to the victorious party. It reminded litigants that the appellate process exists solely for serious litigants and relieved the parties of the pendency of the process.
Legal principles established
#- A notice of appeal lodged outside the 14-day period prescribed by rule 75(1) and (2) of the Court of Appeal Rules, without leave, is incompetent, null and void ab initio; non-compliance with rule 75 is fatal to the appellate process and cannot be cured under Article 159 of the Constitution, unlike non-compliance with rule 82.
Court orders
#- 1.The purported notice of appeal dated and lodged on the 24th day of December, 2012 out of time and without leave of court is struck out
- 2.The applicant is awarded costs of the application
- On appeal from
- High Court of Kenya at Nairobi (Industrial Court, now Employment and Labour Relations Court)
- Industrial Cause No. 772 of 2010
- Jurisdiction invoked
- Article 159(2)(a) and (b) of the Constitution; sections 3 and 3A of the Appellate Jurisdiction Act (Cap 9)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Union Commercial, Food and Allied Workers v Keroche Industries Limited & 3 others [2017] KECA 209 (KLR)", Case Analysis (2017). Civil Application No. 44 of 2017 (UR 34 of 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/209/eng@2017-10-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.