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Court of AppealDismissedCivil Appeal (Application) 35 of 2018· [2022] KECA 1045 (KLR)

Amin Ahmed Juneja v Roshan Jqbal Juneia

Court of Appeal
23 September 2022
876 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed that cross-appeals follow Rule 93's timeline, not the 14-day notice rule for appeals.

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 appellant, Amin Ahmed Juneja, seeking to expunge from the record the respondent's notice of cross-appeal dated 10th October 2021 and filed on 22nd October 2021, on the ground that it breached the fourteen-day timeline in Rule 75 of the Court of Appeal Rules, 2010. The appeal and cross-appeal arise from a judgment of the High Court at Kisumu (Kibunja, J) dated 17th January 2021 in ELC No. 46 of 2013. The court held that Rule 75, which governs notices of appeal, does not apply to cross-appeals; Rule 93 is a complete code for cross-appeals and requires no separate notice under Rule 75. Under Rule 93(2), a 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. Since the appeal had not been set down for hearing, the cross-appeal filed on 22nd October 2021 was within time. The court declined to rule on the applicant's contention that Rule 93(2) was unconstitutional, as no constitutional challenge was formally before it. The motion was dismissed with costs. The decision binds subordinate courts and the High Court on the inapplicability of Rule 75 to cross-appeals.

Key legal issues

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01

Whether Rule 75 applies to cross-appeals

Holding

It does not; Rule 93 is a complete code for cross-appeals and makes no reference to Rule 75, so no separate 14-day notice is required.

Reasoning

The court read Rule 93 as laying down the complete steps for a respondent desiring to cross-appeal: a notice specifying grounds and the order proposed, lodged under Rule 93(2). Rule 93 makes no reference to Rule 75 and there is no requirement for any other notice. The 14-day timeline in Rule 75 governs only notices of appeal by an appellant.

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02

Timeliness of the cross-appeal filed 22nd October 2021

Holding

Filed within time under Rule 93(2) because the appeal has not been set down for hearing.

Reasoning

Rule 93(2) permits lodgment 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. Since the appeal is not set down for hearing, the cross-appeal lodged on 22nd October 2021 was timeous.

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Constitutionality of Rule 93(2)

Holding

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

Reasoning

The applicant argued that Rule 93(2) yields unequal treatment of parties and is unconstitutional. The court noted there was no constitutional challenge before it and declined to express itself on that question either way.

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; cross-appeals are governed exclusively by Rule 93.
  • 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 (inherent power invoked by the applicant)

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, "Amin Ahmed Juneja v Roshan Jqbal Juneia", Case Analysis (2022). Civil Appeal (Application) 35 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1045/eng@2022-09-23

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