[2011] KECA 348 (KLR)
The court held that although there was non-compliance with Rule 76(1) regarding timely service of the notice of appeal, the respondent provided a reasonable explanation for the delay, and the applicant failed to demonstrate any prejudice suffered as a result. The court emphasized the overriding objective under...
Source-derived case information.
- Citation
- [2011] KECA 348 (KLR)
- Parties
- Applicant: Max International Co. Ltd; Respondent: Bruno Pezzotta
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Malindi
- Jurisdiction
- Kenya
- Case Number
- Civil Application 246 of 2010
- Procedural Posture
- Civil Application / Application to Strike Out Notice of Appeal
- Outcome
- application dismissed
- Legal Topics
- Service of Notice, Appellate Rules Compliance, Overriding Objective, Late Service, Striking Out Applications
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Max International Co. Ltd
Applicant
Bruno Pezzotta
Respondent
Procedural Posture
Civil Application / Application to Strike Out Notice of Appeal
Legal Issues
- 1 Whether the notice of appeal should be struck out for being served out of time contrary to Rule 76(1) of the Court of Appeal Rules.
- 2 Whether the delay in service was excusable under the overriding objective provisions of the Appellate Jurisdiction Act.
Ratio Decidendi
The court held that although there was non-compliance with Rule 76(1) regarding timely service of the notice of appeal, the respondent provided a reasonable explanation for the delay, and the applicant failed to demonstrate any prejudice suffered as a result. The court emphasized the overriding objective under sections 3A and 3B of the Appellate Jurisdiction Act, which requires courts to facilitate the just, expeditious, and affordable resolution of appeals. Striking out the notice of appeal in these circumstances would be contrary to these objectives. Therefore, the application to strike out the notice of appeal was dismissed, and the notice was deemed properly served.
Court Disposition
application dismissed
Orders
- The notice of motion dated 8th October, 2010 is dismissed.
- The notice of appeal is deemed as properly served upon the respondent.
Full Case Text
Judgment text and source record
37 paragraphs
IN THE COURT OF APPEAL
AT MOMBASA
(CORAM: BOSIRE, GITHINJI & VISRAM, JJ.A)
CIVIL APPLICATION NO. NAI. 246 OF 2010
BETWEEN
MAX INTERNATIONAL CO. LTD ….....…..…... APPLICANT/RESPONDENT
AND
BRUNO PEZZOTTA ……………...…..…....… RESPONDENT/APPELLANT
(An application to strike out notice of appeal dated 27th July, 2010 and lodged in the High Court of Kenya at Malindi on the same date
in
H. C. C. C. No. 72 of 2007)
*******************
RULING OF THE COURT
This is an application by way of notice of motion brought under Rules 80 and 42 of the Court of Appeal Rules (the Rules) in which the applicant (respondent in the appeal) seeks an order that the notice of appeal be struck out on the ground that the same was served on the applicant out of time, contrary to Rule 76 (1) of the Rules.
The facts are not in dispute. The notice of appeal was lodged at the superior court registry on 27th July, 2010 within the required fourteen days after delivery of the judgment by the superior court, the subject of the appeal herein. However, it was not served upon the respondent until 23rd September, 2010, a delay of almost two months.
In his replying affidavit, Mr. William Wameyo, learned counsel for the respondent, admits these facts, and attributes the delayed service to “oversight and confusion” in his office.
Mr. Ayub Muhuni, learned counsel for the applicant, has not demonstrated to us what prejudice, if any, his client has suffered because of this omission. Although we deprecate non-compliance with the Rules, we are of the view that in this case the respondent has offered a reasonable explanation for the omission, and we are minded to excuse the error. We are fortified in our decision by the newly enacted sections 3 A and 3 B of the Appellate Jurisdiction Act (the Act), which state as follows:
“3A. (1) The overriding objective of this Act and the rules made hereunder is to facilitate the just, expeditious, proportionate and affordable resolution of the appeals governed by the Act.
(2)The Court shall, in the exercise of its powers under this Act or the interpretation of any of its provisions, seek to give effect to the overriding objective specified in subsection (1).
“3B. (1) for the purpose of furthering the overriding objective specified in section 3A, the Court shall handle all matters presented before it for the purpose of attaining the following aims-
(a)the just determination of the proceedings;
(b)the efficient use of the available judicial and administrative resources;
(c)the timely disposal of the proceedings, and all other proceedings in the Court, at a cost affordable by the respective parties; and
(d)the use of suitable technology.”
We are of the view that to allow the application before us would be to act contrary to the aforesaid overriding objectives. Accordingly, the notice of motion dated 8th October, 2010 is hereby dismissed. The notice of appeal is deemed as properly served upon the respondent. As regards costs of the application, the same shall be paid by the respondent (appellant in the appeal). It is so ordered.
Dated and delivered at Mombasa this 4th day of March, 2011.
S. E. O. BOSIRE
………….….…………
JUDGE OF APPEAL
E. M. GITHINJI
…………….………….
JUDGE OF APPEAL
ALNASHIR VISRAM
………………….………
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR