[2023] KECA 113 (KLR)
The court held that the applicant's failure to give notice of the intended cross-appeal and to lodge such notice in the appropriate registry, as required by Rule 95(1) and (2) of the Court of Appeal Rules, was a jurisdictional defect. Without compliance with these mandatory procedural requirements, the court lacked...
Source-derived case information.
- Citation
- [2023] KECA 113 (KLR)
- Parties
- Appellant: Kenya Power & Lighting Company; Respondent: Alexander Kasina Mukala
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal (Application) E203 of 2022
- Procedural Posture
- Civil Appeal Application / Ruling on Application for Extension of Time to File Cross Appeal
- Outcome
- application dismissed with costs to the respondent
- Judges
- KI Laibuta
- Legal Topics
- Extension of Time, Cross Appeal, Court of Appeal Rules, Jurisdictional Requirements
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenya Power & Lighting Company
Appellant
Alexander Kasina Mukala
Respondent
Procedural Posture
Civil Appeal Application / Ruling on Application for Extension of Time to File Cross Appeal
Legal Issues
- 1 Whether the applicant is entitled to extension of time to file a cross-appeal out of time.
- 2 Whether failure to give notice of intended cross-appeal as required by Rule 95(1) and (2) of the Court of Appeal Rules is fatal to the application.
Ratio Decidendi
The court held that the applicant's failure to give notice of the intended cross-appeal and to lodge such notice in the appropriate registry, as required by Rule 95(1) and (2) of the Court of Appeal Rules, was a jurisdictional defect. Without compliance with these mandatory procedural requirements, the court lacked jurisdiction to entertain the application for extension of time. Consequently, the application was dismissed as incompetent, with costs awarded to the respondent.
Court Disposition
application dismissed with costs to the respondent
Orders
- The application for extension of time to file a cross-appeal is dismissed.
- Costs awarded to the respondent.
Full Case Text
Judgment text and source record
21 paragraphs
Kenya Power & Lighting Company v Mukala (Civil Appeal (Application) E203 of 2022) [2023] KECA 113 (KLR) (3 February 2023) (Ruling)
Neutral citation: [2023] KECA 113 (KLR)
Republic of Kenya
In the Court of Appeal at Nairobi
Civil Appeal (Application) E203 of 2022
KI Laibuta, JA
February 3, 2023
Between
Kenya Power & Lighting Company
Appellant
and
Alexander Kasina Mukala
Respondent
(Being an application for extension of time to file a Cross Appeal out of time, from the Judgment and Decree of the Employment and Labour Relations Court of Kenya at Nairobi (Hellen Wasilwa, J.) delivered on 9th October 2018 in E.L.R.C Cause No. 301 of 2012 Cause 301 of 2012 )
Ruling
1By a notice of motion dated November 7, 2022 and anchored on a whopping 28 grounds set out on the face of the motion, the applicant, Alexander Kasina Mukala, seeks extension of time to file a cross appeal, and prays that the draft memorandum of appeal annexed to his supporting affidavit sworn on November 7, 2022 be deemed as duly filed.
2In support of the applicant’s motion, his former counsel, M/s KK Katisya and Company, filed written submissions and a list of authorities both dated November 15, 2022.
3The applicant’s motion is opposed vide the undated replying affidavit of Kwame Shago, learned counsel for the respondent. Learned counsel also filed written submissions dated December 2, 2022.
4Rule 95(1) and (2) of the Court of Appeal Rules provides: 95. (1)A respondent who desires to contend at the hearing of the appeal that the decision of the superior court or any part thereof should be varied or reversed, in any event or in the event of the appeal being allowed in whole or in part, shall give notice to that effect, specifying the grounds of the contention and nature of the order which he or she proposes to ask the court to make, or to make in that event, as the case may be.(2)A notice under sub-rule (1) shall state the names and addresses of the persons intended to be served with copies of the notice and lodged in four copies in the appropriate registry not more than thirty days after service on the respondent of the memorandum of appeal and record of appeal, or not less than thirty days before the hearing of the appeal, whichever is the later.”
5It is noteworthy that, apart from seeking extension of time to lodge a cross-appeal four years down the line, the applicant has neither given notice of his intended cross-appeal in compliance with rule 95(1) nor lodged such notice in the appropriate registry as required under sub-rule (2). I need not overemphasise that a notice of appeal or of cross-appeal is jurisdictional, and without which the applicant’s motion is dead on arrival. The same fails and is hereby dismissed with costs to the respondent.
DATED AND DELIVERED AT NAIROBI THIS 3RD DAY OF FEBRUARY, 2023. DR KI LAIBUTA.................................JUDGE OF APPEALI certify that this is a true copy of the originalSignedDEPUTY REGISTRAR