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Court of AppealDismissedCivil Appeal E137 of 2022 - Notice of Motion dated 6th February 2023· [2023] KECA 1290 (KLR)

Heritage Investment Limited v Rimui (Civil Application E006 of 2023) [2023] KECA 1290 (KLR)

Court of Appeal of Kenya
27 October 2023
1,632 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employer's bid to kill a former worker's appeal failed because it ignored its own duty to file a notice of address for service.

What this practically means

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Executive summary

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This was an interlocutory application by Heritage Investment Limited, the appellant in a pending second appeal (Civil Appeal E137 of 2022), seeking the striking out of the respondent's memorandum and record of appeal under Rules 86 and 92 of the Court of Appeal Rules. The underlying dispute arose from a 2013 road traffic accident in which the respondent, a driver employed by the applicant, was injured; his suit was dismissed in the magistracy, and Ndolo, J dismissed his first appeal in the ELRC on 21st May 2020. The respondent, permitted to appeal as a pauper, filed his memorandum and record of appeal on 16th December 2022 but served them on 27th January 2023, beyond the prescribed seven days. The applicant contended the delay was fatal under Rule 92 and that Article 159 could not excuse non-compliance. The respondent explained that the registry failed to automatically generate an appeal number after the pauper filing, and contended that the applicant never filed the notice of address for service required by Rule 81(1), so the service timelines never began to run. The Court of Appeal (Kairu, Lesiit and Odunga, JJAA) agreed with the respondent. Applying Rule 81(1) and the Taracisio Githaiga Ruithibo line of authority on strict adherence to procedural rules, it held that the applicant's own failure to lodge and serve a notice of address for service disentitled it from complaining of late service or seeking to terminate the appeal. The court dismissed the motion with costs on 27th October 2023.

Key legal issues

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01

Effect of a respondent's failure to lodge and serve a notice of address for service under Rule 81(1)

Holding

The applicant, having been served with the notice of appeal but failing to lodge and serve a notice of address for service, could not complain of late service of the memorandum and record of appeal or use that delay to terminate the appeal.

Reasoning

Rule 81(1) imposes a duty on a person served with a notice of appeal to lodge and serve a notice of a full and sufficient address for service within fourteen days, and to serve a copy on every other named person within a further fourteen days. The court, following Taracisio Githaiga Ruithibo, held that this duty is triggered by service of the notice of appeal. Since the applicant never performed it, its complaint about service of the record was self-inflicted and could not ground striking out the appeal.

p. 4
02

Strict adherence to rules of procedure versus Article 159 of the Constitution

Holding

Clear procedural rules must be strictly observed; Article 159 and the oxygen principles cannot be used to excuse non-compliance or overthrow rules of procedure.

Reasoning

Relying on Salat, Jutley, Chelashaw, Onjula and Ruithibo, the court reaffirmed that rules of practice and procedure serve certainty, fairness and the rule of law, and that courts must not provide succour to parties who show scant respect for rules and timelines. Departure from clear, repeatedly interpreted rules without amending them confounds litigants and cannot be countenanced, even for an unintentional omission.

p. 2

Legal principles established

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  • A party who fails to comply with Rule 81(1)(a) by not lodging and serving a notice of address for service cannot later complain of non-service of the memorandum and record of appeal or seek to have the appeal struck out on that basis.
  • Rules of procedure must be strictly adhered to; Article 159 and the oxygen principles do not permit courts to override clear rules of procedure.

Court orders

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  1. 1.The Notice of Motion dated 6th February 2023 seeking striking out of the Memorandum and Record of Appeal is dismissed
  2. 2.The applicant to pay the costs of the application

Authorities

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Legislation

  • Constitution of KenyaArticle 159
  • Court of Appeal RulesRule 81(1)(a)
  • Court of Appeal RulesRule 81(1)(b)
  • Court of Appeal RulesRule 84
  • Court of Appeal RulesRule 86
  • Court of Appeal RulesRule 92
  • Court of Appeal Rules (former)Rule 78(1)(a)

Cases cited (8)

  • Nzai & 57 others v Invesco Assurance Co Ltd
    (2022) KECA 66
  • Raila Odinga v IEBC & others
    [2013] eKLR
  • Nicholas Kiptoo Arap Korir Salat v IEBC & 6 others
    [2013] eKLR
  • Sukwinder Singh Jutley v. Prudential Association Co. of Kenya Ltd & Another
    Civil Appeal (Application) No. 62 of 2004
  • Chelashaw v Attorney General & Another
    [2005] 1 EA 33
  • Onjula Enterprises Ltd vs. Sumaria
    [1986] KLR 651
  • Taracisio Githaiga Ruithibo v Mbuthia Nyingi
    Civil Appeal No. 21 of 1982; [1984] KLR 505
  • London Association for the Protection of Trade & Another v Greenlands Limited
    [1916] 2 AC 15 at 38
On appeal from
Employment and Labour Relations Court
Civil Appeal 11 of 2018 (arising from Mombasa SPMCC 1485 of 2013)
Jurisdiction invoked
Rules 86 and 92 of the Court of Appeal Rules (interlocutory application in a pending second appeal)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Heritage Investment Limited v Rimui (Civil Application E006 of 2023) [2023] KECA 1290 (KLR)", Case Analysis (2023). Civil Appeal E137 of 2022 - Notice of Motion dated 6th February 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/1290/eng@2023-10-27

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.