Mukesh Manchand Shah & another v Priyat Shah & another [2015] KECA 716 (KLR)
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
#Key legal issues
#What constitutes the 'hearing' of an appeal for purposes of the thirty-day cross-appeal lodgment rule
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.
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.
Where a notice of cross-appeal must be lodged
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.
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.
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.The notice of cross-appeal dated 21st April 2015 and lodged on the same day is expunged from the record
- 2.Costs to be in the appeal
- 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.