Heritage Investment Limited v Rimui (Civil Application E006 of 2023) [2023] KECA 1290 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Effect of a respondent's failure to lodge and serve a notice of address for service under Rule 81(1)
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.
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.
Strict adherence to rules of procedure versus Article 159 of the Constitution
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.
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.
Legal principles established
#- 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
#- 1.The Notice of Motion dated 6th February 2023 seeking striking out of the Memorandum and Record of Appeal is dismissed
- 2.The applicant to pay the costs of the application
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.