Sawe v Ekaterra Tea Kenya PLC

3. (c) the typed proceedings were ready for collection on 19th September 2025, therefore under Rule 84, the respondent was obliged to institute its appeal within 60 days, excluding such time as may be certied by the Registrar as having been required for the preparation of the proceedings; (d) the time within which to institute the appeal expired on or about 18th November 2025, and, to date, 9 months after the proceedings were ready and almost 7 months since the time to appeal lapsed, the respondent has neither lodged nor served its appeal; (e) by dint of Rule 85, an intended appellant who fails to institute its appeal within the appointed time is deemed to have withdrawn its notice of appeal; (f) the respondent’s failure to institute the appeal is deliberate, inordinate and in bad faith and it is calculated to perpetuate the interim stay of execution pending appeal; (g) the continued subsistence of the notice of appeal and the order of stay of execution is highly prejudicial and oppressive to the applicant and oends Article 159 (2) (b) of the Constitution; (h) the respondent, having demonstrated no genuine intention to prosecute its intended appeal, will suer no prejudice whatsoever should the orders sought be granted, and, (i) it is in the interest of justice and in keeping with the overriding objective of the Court, that the notice of appeal be deemed withdrawn so as to pave the way for execution of the decree. The respondent opposed the application vide a replying adavit dated 23rd July 2026 sworn by Cindy Dana, its legal counsel-plantations. Its salient grounds are : (a) the application was brought in bad faith and without full disclosure of material facts; (b) the respondent will suer imminent nancial loss if stay orders are lifted or the notice of appeal is deemed as withdrawn; (c) both the applicant and the respondent lodged notices of appeal against the same judgment; (d) there is a subsisting appeal against the said judgment being Nakuru Civil Appeal No. E190 of 2025, David Sawe vs. Ekaterra Tea Kenya PLC led by the applicant which has already been served upon the respondent, therefore, there is no need for the respondent to duplicate the record of appeal on the same subject matter; (e) the stay of execution was granted on the basis that both parties were appealing against the same judgment; (f) the respondent has led a notice of a cross-appeal. 4. In his supplementary adavit dated 23rd July 2026, the applicant maintained that the respondent failed to le its appeal within the time set out by Rule 84, nor did the respondent provide evidence of receiving typed proceedings or taking steps to compile or lodge the appeal and no application for extension of time or abandonment of the appeal was oered. Further, the respondent’s appeal is not supported by a record and no certicate of delay was issued in its favour. Further, the respondent’s claim of duplicating the applicant’s appeal is invalid, and, in any event, the two appeals are diametrically opposed. The failure to le an appeal renders the respondent’s notice of appeal ineective. Further, the respondent’s inaction of over two years conrms abandonment of the appeal. 5. In support of the application, the applicant submitted that Rule 84 (1) requires an appeal to be instituted within 60 days from the date the notice of appeal is lodged, excluding such time as may be certied as necessary for the preparation of the proceedings. The applicant maintained that the https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1728/eng@2026-09-25 2

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notice of appeal was lodged on 18th July 2024, therefore, time provided for ling an appeal had lapsed. Therefore, the appeal is now over 7 months out of time. 6. The applicant cited this Courts’ decision in Quicklubes E.A. Limited vs. Kenya Railways Corporation [2014] eKLR, in which this Court held that the rule confers unfettered discretion where a party lodges a notice of appeal “and then goes to slumber”, and that it exists to stem abuse of process and promote ecient case management. In addition, the applicant cited John Mutai Mwangi & 26 Others vs. Mwenja Ngure & 4 Others [2016] eKLR, in which the Court stated: “ … mischievous or crafty litigants may be content to merely park the bus at appeal gate and not move thereafter – especially should they obtain some kind of stay or injunctive orders protective of their interests pending appeal. To that category of appellants, a delayed, snail speed or never happen institution of the appeal means a perpetual enjoyment of interim relief. The rule was designed to give to such no succor.” 7. Also, the applicant relied on Gamma Villa Limited vs. Kenya Ports Authority (Civil Application E068 of 2022) [2023] KECA 921 (KLR), in which this Court held that where the steps towards institution of an appeal have not been shown to have been taken, the notice may properly be deemed as withdrawn, stressing that explanations for delay are matters for an application for extension of time, not a substitute for compliance with the rules. 8. The applicant also argued that the power conferred by Rule 85 is exercisable by the Court on its own motion at any time. He also cited Cloy & 2 Others vs. Kiniaru (Civil Application E055 of 2024) [2025] KECA 943 (KLR), in which this Court held that Rule 85 may be invoked notwithstanding the proviso in Rule 86, because Rule 85 addresses the legal consequence of failure to institute an appeal in time. He also cited Karurie vs. Kamau (Civil Appeal (Application) E134 of 2021) [2025] KECA 366 (KLR), in which this Court granted a relief under Rule 85 even though the application was led more than two years after service of the notice of appeal. 9. To further buttress his case, the applicant cited Irungu vs. Nairobi City Water & Sewerage Company Limited (Civil Application E337 of 2020) [2026] KECA 822 (KLR) in which he argued the Court to deem the notice as withdrawn with costs in similar circumstances as in this case. 10. Regarding the plea to this Court to discharge the stay orders, the applicant argued that stay pending appeal has no independent life. He argued that a stay under Order 42 Rule 6 of the Civil Procedure Rules granted pending appeal to this Court just like in Rule 5 (2) (b) presupposes a subsisting appeal or intended appeal. Once the notice of appeal is deemed withdrawn, the substratum of the stay, whether granted by this Court or the Superior Court lapses. He also cited Igweta & Another vs. Kathambi & 2 Others (Civil Appeal (Application) E442 of 2024) [2025] KECA 457 (KLR) in which this Court emphasized that failure to take an essential step such as instituting the appeal leads to the notice being marked withdrawn, with the necessary consequence that any stay founded on the intended appeal cannot stand indenitely. 11. He submitted that a stay pending appeal has no independent life. A stay under Order 42 Rule 6 of the Civil Procedure Rules granted pending appeal to this Court just like Rule 5 (2) (b) presupposes a subsisting appeal or intended appeal. Once the notice of appeal is deemed withdrawn, the substratum of the stay, whether granted by this Court or by the Superior Court lapses. He relied on Igweta & Another vs. Kathambi & 2 Others (Civil Appeal (Application) E442 of 2024) [2025] KECA 457 (KLR) in which this Court emphasized that failure to take an essential step such as instituting the appeal leads to the notice being marked withdrawn, with the necessary consequence that any stay founded on the intended appeal cannot stand indenitely. According to the appellant, to hold https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1728/eng@2026-09-25 3

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otherwise would reward the precise mischief Rule 85 was enacted to defeat. He argued that the applicant was dismissed from employment in May 2023, he was vindicated by the trial court in July 2024, since then, he has been kept away from his decretal sum by a notice of appeal which the respondent never intended to prosecute. According to the applicant, the forgoing oends Article 159 (2) (b) which requires justice to be administered without undue delay, Article 50 (1) on resolution of disputes within reasonable time, and Sections 3A and 3B of the Appellate Jurisdiction Act. The respondent, having abandoned the appeal, will suer no prejudice if the stay is lifted. 12. Regarding costs, the applicant maintained that Rule 85 (2) is in mandatory terms, therefore, the party in default should pay the costs incurred by the person upon whom the notice of appeal was served. The applicant urged this Court to allow the application dated 15th June 2026 as prayed. 13. The respondent maintained that the applicant’s application lacks merit both in fact and in law and that the issues at hand go beyond the deeming provisions of Rule 85. It argued that both parties lodged notices of appeal against the same decision. The respondent also argued that there is in existence a record of appeal lodged by the applicant, therefore, ling another record of appeal is tantamount to duplicating it, except where the existing record of appeal is incomplete. Further, the respondent argued that it led its notice of appeal on 18th July 2024 and requested for proceedings, but it never received a notication from the court informing it that the proceedings are ready, therefore, it exercised its rights under Rule 95 by ling a notice of cross appeal within the prescribed time instead of duplicating the record and it is supported by a certicate of delay. 14. It was the respondent’s submission that the rules favor supplementing existing records over duplicating them. Also, case law supports avoiding unnecessary duplication, except where the record is incomplete. In addition, courts have upheld the suciency of existing records to prevent procedural abuse. In support of this assertion, the respondent cited this Court’s decision in Catherine Karungari Karl vs. Guenter Otto Karl [1998] KECA 281 (KLR) that an existing record of appeal may be treated as sucient, thereby avoiding unnecessary duplication of appellate records. Buttressed by this decision, the respondent argued that a complete record of appeal is already before this Court, therefore, it is unnecessary to require each party to le an identical record. Therefore, the respondent’s decision to rely on the existing record is procedurally sound. 15. The respondent also relied on the Supreme Court’s decision in Law Society of Kenya vs. Centre for Human Rights and Democracy & 12 Others (Petition 13 of 2013) [2014] KESC 29 (KLR) (8 April 2014) (Ruling) in which the Apex Court determined that provided no party is prejudiced, a petitioner may rely on records of appeal led, therefore, it will serve no purpose to le a duplicate record of appeal. In addition, procedural rules should not be interpreted to require unnecessary duplication, especially where it does not advance justice. 16. The respondent also cited this Court’s decision in Juma & 2 Others vs. National Land Commission & 3 Others (Civil Appeal No/ 101 of 2018) [2023] KECA 1334 9KLR0 910 November 2023) (Judgment) to underscore that it is imprudent and an abuse of court process for a respondent, after being served with a notice of appeal and a record of appeal as happened in this case, to also lodge a memorandum and record of appeal. The respondent may only lodge a supplementary record of appeal. Filing a duplicate record of appeal is not only unnecessary but may constitute an abuse of court process. 17. The respondent also cited National Land Commission vs. Johnson Okiro Misiga [2021] KECA 1007 (KLR) and Juneja vs. Juma, Civil Appeal (Application) No. 35 of 2018 [2022] KECA 1028 (KLR) (23 September 2022) (Ruling) to urge that its notice of cross appeal was led within time, and the applicant’s interpretation of the law would lead to unnecessary costs and procedural ineciency. It was also the respondent’s submission that its cross-appeal seeks dierent reliefs, and it was led within the https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1728/eng@2026-09-25 4

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time stipulated by Rule 95 (2). It also submitted that its cross-appeal’s validity depends on the existence of a live appeal, not on the respondent’s original appeal. 18. Regarding the applicant’s plea to lift the stay orders, the respondent submitted that lifting the stay before the cross appeal is heard and determined would be premature and unjust because stay of execution serves to preserve the subject matter pending appeal, and, lifting the stay would allow the applicant to enjoy the benets of the judgment while the appeal is ongoing. Lastly, the stay aligns with the purpose of preserving the appellate process. 19. At the outset, it is important to underscore that under Rule 85, if an intended appellant fails to institute an appeal within 60 days of ling their notice of appeal, that notice is typically deemed to have been withdrawn. However, this Court has repeatedly declined to strictly enforce this "deemed withdrawal" rule if the omission occurred because the other party led their primary record rst, eectively prompting the respondent to rightfully shift avenues and utilize a notice of cross-appeal instead. (See Gad David Ojuando vs. Nimrod Bwibo (Chairman Maseno University Council) & 2 Others [2006] KECA 177 (KLR)). 20. This Court has consistently maintained that where a respondent has already led and served a notice of cross- appeal, the Court will be highly reluctant to deem the main appeal as withdrawn or dismissed for non-prosecution (or default) without considering the survival of the cross-appeal. The cross-appeal vests the respondent with independent rights to have their grievances adjudicated, preventing the appellant from unilaterally killing the entire appellate proceedings. In National Bank of Kenya Limited vs. Pipeplastic Samkolit (K) Limited & Another [2011] eKLR, a foundational locus classicus on this procedural dilemma, both parties led notices of appeal against the High Court's judgment. The respondent did not le a separate primary record of appeal within 60 days but instead led a notice of cross-appeal upon being served with the appellant's record. The Court rejected the argument that the respondent's cross- appeal was incompetent because their original notice of appeal was "deemed withdrawn.” The Court held that the rules of procedure are meant to facilitate justice, not choke it. Since the appellant had already brought the primary record to court, forcing the respondent to compile and le an identical record would be a waste of judicial time and resources, violating the overriding objective of the Court. 21. In Pan Africa Life Assurance Limited vs. Sunset Investments Limited [2015] eKLR, the appellant moved the court to strike out a cross-appeal, claiming that because the respondent let the 60-day statutory window lapse without ling an independent appeal, their underlying notice of appeal was dead by operation of law. The Court of Appeal declined to deem the notice as withdrawn. The Court observed that once a primary appeal is live, a cross-appeal serves as an independent vehicle for the respondent's grievances. The ling of a notice of cross-appeal eectively supersedes the necessity of initiating a separate primary appeal. 22. In Georey Muthinya & 157 Others vs. Housing Finance Company of Kenya Ltd [2021] eKLR, a dispute arose where multiple parties were aggrieved by the same judgment. The respondent chose to shift avenues and utilize a cross-appeal after the appellant led the primary record. The court validated the cross-appeal and refused to apply the "deemed withdrawal" rule automatically. The court claried that the "deemed withdrawal" rule is triggered to ush out dormant, stale litigation where no party takes steps to advance the matter. However, when a party actively joins the existing appellate matrix via a cross-appeal, they demonstrate an active intent to litigate, and the technical omission to le a duplicate primary record is entirely cured. 23. Numerous decisions by this Court have established that where both parties have led separate notices of appeal against the same judgment, it is an unnecessary duplication of the court’s resources to le https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1728/eng@2026-09-25 5

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two separate records of appeal. Instead, once the primary appellant les and serves the initial record of appeal, the respondent is at liberty to lodge their grievances via a notice of cross-appeal, leveraging the existing primary record. The foregoing position was reiterated with sucient clarity in Water Resources Authority vs. Superior Homes (Kenya) PLC in which this Court stated that because the other party who was also aggrieved by the same decision had lodged a separate primary appeal against the same decision, allowing the other party to le another distinct primary record would constitute an abuse of process through duplication. The Court armed that it suces for the aggrieved respondent to raise their cross-grievances via a cross-appeal on the primary record. 24. This Court in Ndapatana vs. National Housing Corporation (Civil Appeal E010 of 2022) [2025] KECA 865 (KLR) (21 March 2025) (Judgment) clearly stated that if the respondent discovers that the primary appellant intentionally or inadvertently omitted critical pleadings or portions of the trial court’s transcripts necessary to sustain the cross-appeal, the proper remedy is not to le a new separate record. Under Rule 92, the respondent should simply le a supplementary record of appeal containing only those omitted documents. 25. In National Stadium South Africa (Pty) Ltd vs. Sasol Oil (Pty) Ltd, 2011 (2) SA 157 (SCA), the Supreme Court of Appeal of South Africa underscored that the cross-appeal is the only proper mechanism for a respondent seeking to vary the same decision against which an appeal has been preferred. The Court emphasized that if an appellant appeals against a portion of an order, and the respondent wishes to challenge another portion of that identical order, the respondent cannot initiate a fresh, separate appeal le. They are structurally bound to le a cross-appeal. The Court stated that “a cross- appeal is not an independent proceeding but is parasitic on the main appeal.” Therefore, once the primary appeal is activated, ling a separate appeal is an irregular proceeding because it outs the rules of economy of scale, leading to a duplication of the record and the ination of legal costs. (See SMM Holdings (Pty) Ltd vs. Edwards [2011] ZAGPJHC). 26. From the above cited cases, it is evident that when the Court of Appeal declines to enforce strict withdrawal in these dual- notice scenarios, it is primarily guided by three established rationales: (a) Prevention of Duplicate Records: Forcing both parties to le individual records of appeal against the same judgment results in bulky, identical volumes clogging the court registries. (b) The Right to be Heard: Denying a party the right to argue a cross-appeal simply because they waited for the primary record to be led would defeat their constitutional right to fair hearing. (c) Nature of Cross- Appeals: A cross-appeal does not depend on the survival of the crossappellant's primary notice of appeal; it depends strictly on the existence of the appellant's validly led record of appeal. 27. As the above cited decisions demonstrate, where both parties lodge notices of appeal, but Party A les the primary record of Appeal rst, Party B is not strictly penalized under the "deemed withdrawal" rule if they choose to pursue their grievances via a notice of cross-appeal instead of duplicating the physical record of appeal. Instead, the Court will decline (as we hereby do) to deem the initial notice of appeal as withdrawn or strike out the cross-appeal guided by the landmark decisions cited above and legal principles enunciated in the said decisions. 28. The applicant is urging us to lift the stay orders upon deeming the respondent’s notice of appeal as withdrawn. The applicant’s plea for this Court to deem the respondent’s notice of appeal as withdrawn having failed as herein above stated, the plea to lift the stay orders also collapses. 29. The upshot of the foregoing is that the applicant’s application dated 15th June 2026 is hereby dismissed. Costs of the application shall abide the outcome of the appeal. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1728/eng@2026-09-25 6

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DATED AND DELIVERED AT NAKURU THIS 25TH DAY OF SEPTEMBER, 2026. J. MATIVO ................................ JUDGE OF APPEAL MURUNGI B. KAIRARIA ................................ JUDGE OF APPEAL AHMED ISSACK ................................ JUDGE OF APPEAL I conrm that this is a true copy of the original Signed. DEPUTY REGISTRAR. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1728/eng@2026-09-25 7

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