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Court of AppealDismissedCivil Appeal (Application) No. 72 of 2001

K. H. Osmond v Daima Bank Limited & another [2002] KECA 211 (KLR)

Court of Appeal of Kenya
22 October 2002
216 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed respondents can file a cross-appeal either within 30 days of the Record of Appeal or 30 days before the hearing.

What this practically means

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Executive summary

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This brief ruling of the Court of Appeal at Nairobi, delivered on 22nd October 2002 by Kwach, Omolo and Owuor, Judges of Appeal, disposes of an application by the appellant, K. H. Osmond, in Civil Appeal (Application) No. 72 of 2001 against Daima Bank Limited and Whitestone Auctioneers (K) Ltd. The application attacked a Notice of Cross-Appeal filed by the respondent; the ruling does not spell out the precise relief sought, but it was evidently directed at the timeliness of that notice. Mr Miller, for the appellant, conceded that under rules 90 and 91 of the Court of Appeal Rules a respondent has a choice of two periods for filing a Notice of Cross-Appeal: within 30 days after service of the Record of Appeal, or within 30 days before the date fixed for the hearing of the appeal. The appeal had been fixed for hearing on 11th June 2002, and the Notice of Cross-Appeal was filed on 4th June, the ruling printing the year as 2000 in an apparent typographical slip for 2002. The court held that the notice was filed well within the time limited by the Rules, found no merit in the application, dismissed it, and awarded the costs of the application to the first respondent, Daima Bank Limited. The ruling is a single judgment of the full bench of three; it is unanimous and contains no separate or dissenting opinion. It cites no case law, its only legal source being rules 90 and 91 of the Court of Appeal Rules. It does not disturb the judgment of Gacheche, Commissioner of Assize, dated 12th July 2000 in H.C.C.C. No. 3052 of 1997. Its binding takeaway is the dual filing window for cross-appeals.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether rules 90 and 91 of the Court of Appeal Rules give a respondent a choice of two periods for filing a Notice of Cross-Appeal: within 30 days after service of the Record of Appeal, or 30 days before the date of the hearing of the appeal.
  2. 2.Whether the respondent's Notice of Cross-Appeal, filed ahead of a hearing fixed for 11th June 2002, was filed within the time limited by the Rules.
  3. 3.Whether the appellant's application attacking the Notice of Cross-Appeal had merit.

Key legal issues

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01

Timeliness of a Notice of Cross-Appeal under rules 90 and 91 of the Court of Appeal Rules.

Holding

A respondent has a choice of two filing windows - within 30 days after service of the Record of Appeal or 30 days before the hearing date - and a notice filed within either period is in time; the cross-appeal here was therefore properly on record.

Reasoning

Counsel for the appellant conceded the dual option under rules 90 & 91. The appeal was fixed for hearing on 11th June 2002 and the Notice of Cross-Appeal was filed on 4th June (the ruling prints the year as 2000, an apparent slip for 2002), which the court held fell well within the time limited by the Rules. With the notice validly on record, the application attacking it lacked merit and was dismissed with costs to the first respondent.

p. 1

Legal principles established

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  • Under rules 90 and 91 of the Court of Appeal Rules, a respondent has a choice of two periods within which to file a Notice of Cross-Appeal - within 30 days after service of the Record of Appeal, or 30 days before the date fixed for the hearing of the appeal - and a notice filed within either period is filed in time.

Court orders

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  1. 1.The appellant's application is dismissed.
  2. 2.Costs of the application are awarded to the first respondent, Daima Bank Limited.

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
High Court of Kenya
H.C.C.C. No. 3052 of 1997
Jurisdiction invoked
Not expressly stated in the ruling. It is an application in a civil appeal from the High Court, and the only legal source invoked is rules 90 and 91 of the Court of Appeal Rules governing the filing of a Notice of Cross-Appeal; no constitutional or statutory provision is cited.

Relief refused

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The appellant's application challenging the respondent's Notice of Cross-Appeal (the ruling does not state the precise relief sought, but on its face the application attacked the timeliness of the notice).

The respondent had a choice of filing periods under rules 90 and 91 of the Court of Appeal Rules and the notice was filed well within the time limited by the Rules, so the application had no merit.

p. 1

Costs

It is dismissed with costs to the first respondent.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

the respondent had a choice under rules 90 & 91 of the Court of Appeal Rules to file a Notice of Cross-Appeal either within 30 days after service of the Record of Appeal on it or 30 days before the date of the hearing of the appeal
p. 1Choice of filing periods for a Notice of Cross-Appeal under rules 90 & 91
This was done well within the time limited by the Rules. There is no merit in this application. It is dismissed with costs to the first respondent.
p. 1Disposition - application dismissed, costs to the first respondent

Issues in the judgment

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minor

Internal date inconsistency: the ruling states the Notice of Cross-Appeal was filed on 4th June 2000, yet the appeal is numbered 72 of 2001 and was fixed for hearing on 11th June 2002. A 2000 filing would predate the appeal itself and could not be 'well within' 30 days before a June 2002 hearing; the year is apparently a typographical slip for 2002, but the ruling prints 2000.

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, "K. H. Osmond v Daima Bank Limited & another [2002] KECA 211 (KLR)", Case Analysis (2002). Civil Appeal (Application) No. 72 of 2001. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2002/211/eng@2002-10-22

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