Kiscol & 1 other v Mwaita Hamisi Mbeta & Mwanasha Said Malumbo (administrator of The Estate of The Late Habari Hamisi Mbeta - Deceased) & 1 other

3. 4. The 1st respondents, the plaintiffs before the trial court and in whose favour the judgment was delivered, have filed a preliminary objection expressed to be under Order 42 Rule 13 of the Civil Procedure Rules on the following grounds; a. That this Honourable Court lacks jurisdiction to hear and determine the Memorandum of Cross Appeal dated 15th June 2025 and filed by the 3rd Respondent on the 19th June 2025, as there is no provision for the filing and determination of a memorandum of cross appeal under Order 42 of the Civil Procedure Rules. b. That the said Memorandum of Cross Appeal by the 3rd Respondent is a nullity in law and the filing of the same is an abuse of the legal process and the same ought to be struck out with costs to the 1st Respondent. The 3rd respondent opposed the preliminary objection by filing a replying affidavit sworn on 30th June 2025 by Rebecca Kivinda, its human resource manager. It is their contention that a crossappeal is allowed under Order 42 Rule 32 of the Civil Procedure Rules and that the same allows a respondent to challenge parts of the judgment within an existing appeal without filing a fresh appeal. Further that the cross-appeal was filed within a reasonable time and this court has jurisdiction to handle the same. 5. The preliminary objection was targeted at the 3rd respondent’s cross-appeal. 6. The preliminary objection was disposed of by way of written submissions filed by the 1st respondent and the 3rd respondent. Both parties rely on the provisions of Order 42 Rule 32 to urge their respective cases, opposed to each other as they are. Order 42 Rule 32 provides as follows: “The court to which the appeal is preferred shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents although such respondents may not have filed any appeal or cross-appeal.” 7. The 1st respondent submits that if anything, the cross-appeal filed was outside the period 30 days stipulated under section 79G of the Civil Procedure Act (Cap. 21) Laws of Kenya, it having been filed on 19th June 2025 whereas the judgment appealed from was delivered on 24th July 2024 and the appeal herein filed on 21st August 2024. Further that there is no application for extension of time to file the cross-appeal. 8. The 1st respondent submits further that there are no prescribed rules on filing a memorandum of cross appeal under the Civil Procedure Act and the Civil Procedure Rules and the documents filed in court are therefore a nullity and an abuse of the legal process. 9. The 1st respondent submits further that the correct procedure for the 3rd respondent was to file an appeal before this court at the correct time. Learned counsel has cited the case of George Kianda & another v Judith Katumbi Kathenge & another [2018] KEHC 2455 (KLR) where the High Court, Odunga, J. as he then was, addressing the issue of cross-appeal stated that: “ The known procedure, in the absence of an express provision dealing with cross-appeals in the High Court, is however for each party to file separate appeals and apply for their consolidation.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19669/eng@2025-12-17 2

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10. Finally, learned counsel submits that an application was made by the 3rd respondent in Miscellaneous Civil Application No. E012 of 2024, to file an appeal out of time and the same has since been closed due to the failure by the 3rd respondent to comply with terms. 11. On its part the 3rd respondent submits that there is provision under Order 42 Rule 32 for filing a crossappeal. That a memorandum of cross-appeal allows the respondent parts of the judgment within an existing appeal without filing a fresh appeal. 12. On the of the cross-appeal having been filed outside the 30-day time period provided for under section 79G of the CPA, the 3rd respondent submits that the CPR do not set any specific timelines within which the same may be filed. They submit that the 3rd respondent filed the cross-appeal within a reasonable time after the appeal was filed and before directions were given. 13. The 3rd respondent submits further that failure to admit the memorandum of cross-appeal for hearing will occasion great prejudice to the 3rd respondent as it will be deprived of the opportunity to raise issues favourable to them but adverse to the appellant that have not been raised in the appellant’s memorandum of appeal. On the other hand, that admitting the same will not cause any prejudice to the 1st respondent. 14. The 3rd respondent relied on the following decisions to support its submissions. Bulsho Trading Company Ltd v Rosemary Likholo Mutakha & another [2020] KEHC 1302 (KLR) where a contrary view to the one expressed in the George Kianda case above was expressed by the High Court. The court referred to the earlier case of Kenya Power & Lighting Co. Ltd v Peter Langi Mwasi [2018] eKLR, where, the High Court Njoki Mwangi J while referring to Order 42 Rule 32 of the Civil Procedure Rules stated that: “ The above provisions however do not address the timelines within which a cross-appeal should be filed. Going by the record herein, the memorandum of appeal was filed on 8th July, 2014. If the applicant was desirous of filing a cross-appeal, he should have done so within reasonable time after he was served with the memorandum of appeal. If he fell outside the said timelines given to an appellant to file an appeal, he should have moved the court without inordinate delay to allow him to file a cross-appeal out of time. 15. I have considered the preliminary objection, the response thereto and the submissions by learned counsels for the parties and the authorities cited. It would appear that there is a difference of opinion in the High Court on the efficacy of a cross-appeal in proceedings on appeal. I think the two divergent opinions are reconcilable because, and a second or third appeal have to eventually be disposed of under the same appeal either as a consolidated appeal or an appeal with a cross-appeal. 16. Back to the present issue of the preliminary objection, the 1st respondents have indicated that the 3rd respondent had failed to fulfill terms of the order made by this court in HC Misc. Application No. E012 of 2024 requiring them to deposit security for their memorandum of appeal to be admitted for filing out of time. This court dealt with that application and that position as stated by the 1st respondents is correct. 17. In other words, the 3rd respondent went round that order and came back to this court to advance its quest to participate in the appeal by filing the cross-appeal, the subject of the preliminary objection. I find that to be an abuse of the court process. 18. The 3rd respondent cannot circumvent a court order to avoid compliance and come back to file an appeal camoufiaged as a cross-appeal. The 3rd respondent had already initiated the process of filing an appeal when it filed an application for extension of time in HC Misc. Application No. E012 of 2024. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19669/eng@2025-12-17 3

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That application succeeded but the 3rd respondent failed to abide by the condition required of it by the court. Assuming that there was no other party appealing the trial court’s decision, how would it have advanced its case when it had failed to file an appeal in the first place? 19. But even, if the application is to be considered on face value, the 3rd respondent has with it the decision in the case of Kenya Power & Lighting Co. Ltd v Peter Langi Mwasi [2018] eKLR, where the Court succinctly stated that “If the applicant was desirous of filing a cross-appeal, he should have done so within reasonable time after he was served with the memorandum of appeal. If he fell outside the said timelines given to an appellant to file an appeal, he should have moved the court without inordinate delay to allow him to file a cross-appeal out of time.” 20. Contrary to its own authority which it has cited to this court to assist this court make a fair decision, the 3rd respondent herein filed its cross-appeal almost one year after the impugned judgment of the lower court was delivered and without first seeking leave of the court. That period was inordinate and made worse by the failure to seek leave first. That I find was deliberate because, the 3rd respondent knew very well that it could not file a second application for leave to file the cross-appeal out of time as it would be found to be res judicata. After-all an appeal and a cross- appeal are intended to address the same issues, dissatisfaction with the decision of the lower court. 21. Unfortunately, even the shorter route of filing the cross-appeal leads to the same destination, that the same cannot for the various reasons stated above. 22. Consequently, I find that the preliminary objection on the competency of the cross-appeal has merit and the same is allowed with consequences that the cross-appeal filed herein is incompetent and is struck out with costs to the 1st respondents. 23. Orders accordingly. DELIVERED, DATED AND SIGNED AT KWALE ON THE VIRTUAL PLATFORM, TEAMS THIS 17TH DAY OF DECEMBER 2025. ANDAYI W. F. JUDGE In the presence of: Oweyo (Ms) for 1st appellant. N/A for the 2nd appellant. N/A for the 1st respondents. N/A for the 2nd respondent. N/A for the 3rd respondent. Ummu: Court Assistant. SIGNED BY/FOR: HON. JUSTICE ANDAYI W.F. THE JUDICIARY OF KENYA. KWALE HIGH COURT HIGH COURT DIV DATE: 2025-12-26 11:59:55 https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19669/eng@2025-12-17 4

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