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Court of AppealDismissedCivil Appeal (Application) 35 of 2018· [2022] KECA 1028 (KLR)

Juneja v Juneia

Court of Appeal
23 September 2022
875 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that cross-appeals follow their own 30-day deadline rule, not the 14-day notice-of-appeal timeline.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Kisumu (Kiage, Ngugi and Tuiyott, JJA) on a notice of motion dated 1st November 2021 by the applicant, Amin Ahmed Juneja, seeking the expungement from the record of two purported notices of cross-appeal filed by the respondent, Roshan Jqbal Juneia, in an appeal against the judgment of the High Court at Kisumu (Kibunja, J) dated 17th January 2021 in ELC. No. 46 of 2013. The application, brought under Section 3A of the Appellate Jurisdiction Act and Rules 42 and 75(2) of the Court of Appeal Rules, 2010, contended that the cross-appeal breached the fourteen-day timeline in Rule 75. The court first clarified that there is only one notice of cross-appeal on record, the second document being merely its cover page. On the merits, the court held that Rule 75 does not apply to cross-appeals; Rule 93 is the complete provision governing notices of cross-appeal and makes no reference to Rule 75. Since the appeal had not been set down for hearing, the cross-appeal filed on 22nd October 2021 was within time under Rule 93(2). The court declined to rule on the applicant's constitutional objection to Rule 93, noting no such challenge was properly before it. The application was dismissed with costs. The underlying appeal and cross-appeal remain pending, undisturbed by this ruling.

Key legal issues

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01

Whether Rule 75 applies to cross-appeals

Holding

Rule 75 does not apply to cross-appeals; Rule 93 lays down the complete procedure for a respondent desiring to cross-appeal and makes no reference to Rule 75.

Reasoning

The court construed the express words of Rule 93, which prescribes the steps a respondent must take to contend that the decision below be varied or reversed, including specifying grounds and the order sought. That notice is the notice of cross-appeal. Rule 93 is complete for the purpose and requires no other notice, so the fourteen-day timeline in Rule 75 is inapplicable.

p. 2
02

Timeliness of the cross-appeal filed 22nd October 2021

Holding

The cross-appeal was filed within time under Rule 93(2) because the appeal has not been set down for hearing.

Reasoning

It was common ground that the appeal had not been set down for hearing. Under Rule 93(2), a notice of cross-appeal may be lodged not more than thirty days after service of the memorandum and record of appeal or not less than thirty days before the hearing, whichever is later. Filing on 22nd October 2021 therefore satisfied the rule.

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Constitutionality of Rule 93(1)

Holding

The court declined to determine the constitutionality of Rule 93(1) as no constitutional challenge was before it.

Reasoning

The applicant argued that Rule 93(2) yields unequal treatment of parties and is unconstitutional. The court noted that no constitutional challenge to Rule 93(1) was actually before it and declined to express itself on that question, confining itself to the interpretation issue properly raised.

p. 2

Legal principles established

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  • Rule 75 of the Court of Appeal Rules, 2010, governing notices of appeal, does not apply to cross-appeals; Rule 93 is the complete and exclusive provision governing notices of cross-appeal.
  • A notice of cross-appeal is timeously lodged if filed not more than thirty days after service of the memorandum and record of appeal or not less than thirty days before the hearing, whichever is later.

Court orders

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  1. 1.The notice of motion dated 1st November 2021 is dismissed with costs

Authorities

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Legislation

  • Appellate Jurisdiction ActSection 3A
  • Court of Appeal Rules, 2010Rule 42
  • Court of Appeal Rules, 2010Rule 75(2)
  • Court of Appeal Rules, 2010Rule 93
  • Court of Appeal Rules, 2022Rule 77
  • Court of Appeal Rules, 2022Rule 95
On appeal from
High Court of Kenya at Kisumu
ELC. No. 46 of 2013
Jurisdiction invoked
Section 3A of the Appellate Jurisdiction Act and Rules 42 and 75(2) of the Court of Appeal Rules, 2010

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, "Juneja v Juneia", Case Analysis (2022). Civil Appeal (Application) 35 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1028/eng@2022-09-23

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