Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealPartially AllowedCivil Appeal No. 39 of 2014· [2015] KECA 716 (KLR)

Mukesh Manchand Shah & another v Priyat Shah & another [2015] KECA 716 (KLR)

Court of Appeal
15 May 2015
1,189 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal struck out a cross-appeal filed late, confirming that cross-appeals must be lodged at the Court of Appeal registry at least thirty days before the hearing.

What this practically means

#

Executive summary

#
This interlocutory ruling of the Court of Appeal at Mombasa (Makhandia, Ouko and M'inoti, JJ.A) determined a dispute over a notice of cross-appeal filed by the respondents in Civil Appeal No. 39 of 2014, an appeal against a ruling of Odero, J. of the High Court at Mombasa dated 23rd July 2014 in HCCC No. 37 of 2013 (OS). The appellants objected that the notice of cross-appeal, filed on 21st April 2015 (the day before the appeal was listed), breached Rule 93(2) of the Court of Appeal Rules, which requires lodgment not less than thirty days before the hearing. The respondents argued that the notice had first been filed in the High Court on 19th March 2015 under a mistaken belief, and that the hearing date was 22nd April 2015. The court held that a 'hearing' under Rules 101-104 involves the presentation and adoption of arguments, whether oral or written, so the hearing date was 22nd April 2015, not the 11th March mention. It further held that Rule 93(2) requires lodgment in the 'appropriate registry', defined by Rule 6 as the registry of the Court of Appeal; filing in the High Court was of no effect, and the eventual lodgment was 29 days outside the stipulated period. The court expunged the notice of cross-appeal and ordered costs to be in the appeal. The ruling binds lower courts on the meaning of 'hearing' and the proper registry for cross-appeals.

Key legal issues

#
01

What constitutes the 'hearing' of an appeal for purposes of the thirty-day cross-appeal lodgment rule

Holding

The hearing is the date on which arguments, oral or written, are presented and adopted by the Court; the adjourned date for highlighting submissions or taking a judgment date was the hearing date, not 11th March 2015.

Reasoning

The court read Rules 101-104 together and noted Rule 104(d), which gives written arguments the same consideration as oral argument. Since the arguments on 11th March were never presented or adopted, no hearing occurred; hence the thirty-day period under Rule 93(2) ran from 22nd April 2015.

p. 2
02

Where a notice of cross-appeal must be lodged

Holding

Rule 93(2) requires lodgment in the appropriate registry as defined in Rule 6, which is the registry of the Court of Appeal; filing in the High Court was a nullity, and the later lodgment in the Court of Appeal fell outside the thirty-day window.

Reasoning

The mischief of Rule 93(2) is to give the appellant notice equivalent to what a respondent receives in the main appeal. The court applied the requirement literally: the notice was lodged on 21st April 2015, 29 days short of thirty days before the hearing, and directions had already been given without contemplating the cross-appeal.

p. 3

Legal principles established

#
  • A hearing of an appeal in the Court of Appeal includes the presentation of arguments orally or by written submissions; where written submissions are adopted, the date fixed for highlighting or taking judgment is the hearing date for purposes of Rule 93(2).
  • A notice of cross-appeal under Rule 93(2) must be lodged in the appropriate registry, being the registry of the Court of Appeal, not the High Court; lodgment in the High Court is of no effect.

Court orders

#
  1. 1.The notice of cross-appeal dated 21st April 2015 and lodged on the same day is expunged from the record
  2. 2.Costs to be in the appeal

Authorities

#

Legislation

  • Court of Appeal RulesRule 93(2)
  • Court of Appeal RulesRule 75(1)
  • Court of Appeal RulesRule 6
  • Court of Appeal RulesRules 101-104
  • Court of Appeal RulesRule 104(d)
  • Court of Appeal RulesRule 100
  • Court of Appeal RulesFirst Schedule, Form G

Cases cited (1)

  • Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd
    [1969] E.A. 696
On appeal from
High Court of Kenya at Mombasa
Mombasa HCCC No. 37 of 2013 (OS)
Jurisdiction invoked
Appeal from the High Court under the Court of Appeal Rules (ruling on a notice of cross-appeal under Rule 93(2))

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Mukesh Manchand Shah & another v Priyat Shah & another [2015] KECA 716 (KLR)", Case Analysis (2015). Civil Appeal No. 39 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/716/eng@2015-05-19

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