Joho & another v Shabhal & 2 others (Civil Appeal 12 of 2013) [2013] KECA 283 (KLR)
The bottom line
#Kenya's Court of Appeal ruled you cannot challenge a lower court finding on appeal unless you file a cross-appeal, but allowed one late here.
What this practically means
#Executive summary
#Key legal issues
#Whether a respondent may re-litigate an unchallenged finding of the High Court without a cross-appeal
No - the 1st respondent, having not cross-appealed against the finding that Section 76 of the Elections Act is unconstitutional, could not argue its constitutionality in the appeal
The court accepted counsel's submissions that permitting the 1st respondent to attack the unconstitutionality finding without a cross-appeal would be irregular and prejudicial to the appellants and the 2nd and 3rd respondents. An appeal and a cross-appeal are separate proceedings and each party is entitled to full opportunity to be heard on the cross-appeal.
Whether the court should nonetheless allow the 1st respondent an opportunity to file a cross-appeal out of the ordinary course
Yes - given the great public importance of the High Court's decision and its ramifications for pending election petitions nationwide, and because the 30-day period under Rule 93(2) had arguably not expired, the 1st respondent was allowed to file a cross-appeal within 3 days
The court balanced the irregularity of arguing the issue without a cross-appeal against the public importance of the constitutionality question. Since the appeal was filed on 27th May 2013 and, if served the same date, the 30-day period for cross-appeals had not expired, the court adjourned the appeal to permit a proper cross-appeal in the interest of justice.
Whether the High Court election petition proceedings should be stayed pending determination of the appeal and cross-appeal
Yes - the proceedings were stayed to avoid injustice to the appellant arising from the adjournment necessitated by the cross-appeal
Because granting the 1st respondent leave to file a cross-appeal would delay the determination of the appeal, the court found it just to stay the election petition proceedings in the High Court until the next hearing of the appeal and intended cross-appeal, protecting the appellant from prejudice during the adjournment.
Legal principles established
#- A party cannot seek to overturn a finding of the court below without filing a cross-appeal against that finding
- A notice of cross-appeal must be filed not more than 30 days after service of the Memorandum and Record of Appeal
Court orders
#- 1.The 1st respondent is granted the opportunity to file a cross-appeal raising the constitutionality of Section 76 of the Elections Act
- 2.The election petition proceedings in the High Court are stayed until the next hearing of this appeal and the intended cross-appeal
- 3.The cross-appeal to be filed and served within 3 days from the date of the order
- 4.The appeal and cross-appeal to be heard as soon as practicable, to be fixed within a week if convenient to counsel
- 5.Costs of adjournment to be costs in the appeal
- On appeal from
- High Court of Kenya at Mombasa
- Petition No. 8 of 2013
- Jurisdiction invoked
- First appeal from the High Court under the election petition appeal regime; cross-appeal governed by Rule 93(2) of the Court of Appeal Rules and section 3 of the Appellate Jurisdiction Act invoked by the 1st respondent
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joho & another v Shabhal & 2 others (Civil Appeal 12 of 2013) [2013] KECA 283 (KLR)", Case Analysis (2013). Civil Appeal No. 12 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/283/eng@2013-06-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.