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Court of AppealDismissedCivil Appeal (Application) No. 72 of 2001· [2002] KECA 211 (KLR)

K. H. Osmond v Daima Bank Limited & 1 other

Court of Appeal of Kenya
22 October 2002
RKR. O. KwachROR.S.C. OmoloEOE. Owuor
216 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed respondents can file a cross-appeal either within 30 days of the Record of Appeal or 30 days before the hearing.

What this practically means

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Executive summary

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This brief ruling of the Court of Appeal at Nairobi, delivered on 22nd October 2002 by Kwach, Omolo and Owuor, Judges of Appeal, disposes of an application by the appellant, K. H. Osmond, in Civil Appeal (Application) No. 72 of 2001 against Daima Bank Limited and Whitestone Auctioneers (K) Ltd. The application attacked a Notice of Cross-Appeal filed by the respondent; the ruling does not spell out the precise relief sought, but it was evidently directed at the timeliness of that notice. Mr Miller, for the appellant, conceded that under rules 90 and 91 of the Court of Appeal Rules a respondent has a choice of two periods for filing a Notice of Cross-Appeal: within 30 days after service of the Record of Appeal, or within 30 days before the date fixed for the hearing of the appeal. The appeal had been fixed for hearing on 11th June 2002, and the Notice of Cross-Appeal was filed on 4th June, the ruling printing the year as 2000 in an apparent typographical slip for 2002. The court held that the notice was filed well within the time limited by the Rules, found no merit in the application, dismissed it, and awarded the costs of the application to the first respondent, Daima Bank Limited. The ruling is a single judgment of the full bench of three; it is unanimous and contains no separate or dissenting opinion. It cites no case law, its only legal source being rules 90 and 91 of the Court of Appeal Rules. It does not disturb the judgment of Gacheche, Commissioner of Assize, dated 12th July 2000 in H.C.C.C. No. 3052 of 1997. Its binding takeaway is the dual filing window for cross-appeals.

Key legal issues

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Timeliness of a Notice of Cross-Appeal under rules 90 and 91 of the Court of Appeal Rules.

Holding

A respondent has a choice of two filing windows - within 30 days after service of the Record of Appeal or 30 days before the hearing date - and a notice filed within either period is in time; the cross-appeal here was therefore properly on record.

Reasoning

Counsel for the appellant conceded the dual option under rules 90 & 91. The appeal was fixed for hearing on 11th June 2002 and the Notice of Cross-Appeal was filed on 4th June (the ruling prints the year as 2000, an apparent slip for 2002), which the court held fell well within the time limited by the Rules. With the notice validly on record, the application attacking it lacked merit and was dismissed with costs to the first respondent.

p. 1

Legal principles established

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  • Under rules 90 and 91 of the Court of Appeal Rules, a respondent has a choice of two periods within which to file a Notice of Cross-Appeal - within 30 days after service of the Record of Appeal, or 30 days before the date fixed for the hearing of the appeal - and a notice filed within either period is filed in time.

Court orders

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  1. 1.The appellant's application is dismissed.
  2. 2.Costs of the application are awarded to the first respondent, Daima Bank Limited.
On appeal from
High Court of Kenya
H.C.C.C. No. 3052 of 1997
Jurisdiction invoked
Not expressly stated in the ruling. It is an application in a civil appeal from the High Court, and the only legal source invoked is rules 90 and 91 of the Court of Appeal Rules governing the filing of a Notice of Cross-Appeal; no constitutional or statutory provision is cited.

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, "K. H. Osmond v Daima Bank Limited & 1 other", Case Analysis (2002). Civil Appeal (Application) No. 72 of 2001. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2002/211/eng@2002-10-22

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