Communications Commission of Kenya & 4 others v Royal Media Services Limited & 7 others [2014] eKLR
while in actual fact merely seeking to institute fresh cause. On this point, we are guided by the principle
which we had pronounced in the Mumo Matemo case (at paragraph 24), as follows:
“A suit in Court is a ‘solemn’ process, ‘owned’ solely by the parties. This is the reason why
there are laws and Rules, under the Civil Procedure Code, regarding Parties to suits, and on who
can be a party to a suit. A suit can be struck out if a wrong party is enjoined in it. Consequently,
where a person not initially a party to a suit is enjoined as an interested party, this new party
cannot be heard to seek to strike out the suit, on the grounds of defective pleadings.”
[28] In our view, the standards to be applied in considering whether or not the applicant should be
enjoined as an Interested Party, have not been established. This application, in our perception, is
premised upon mere apprehension and speculation, that rights not-yet crystallized, will be violated.
[29] The applicant also seeks leave to file a cross-petition to the appeal. Part 6 of the Supreme Court
Rules, 2012 regulates the mode of filing appeals before this Court, and makes reference to a crossappeal, as opposed to a cross-petition. Rule 38(1) of the Rules provides the procedure for filing a cross
-appeal as follows:
“A respondent who intends to cross-appeal shall specify the grounds of contention and the nature of the
relief which the respondent seeks from the Court” [emphasis supplied].
[30] The Black’s Law Dictionary, 9th ed (at page 133) defines “cross-appeal” as follows:
“to seek review (from a lower court’s decision) by a higher court”
And “cross-petition” (p.433) as follows:
“i. a claim asserted by a defendant against another party to the action;
ii. claim asserted by a defendant against a person not a party to the action for a matter relating to the
subject of the action.”
[31] From the above definitions, there is a difference between a cross-appeal and a cross-petition. A
cross-appeal is an action by a respondent, who intends to counter an appellant’s cause in an appeal,
with the view of obtaining certain relief(s) from the Court. A cross-petition on the other hand, is an action
by a defendant in first-instance claims, intending to counter the claim of a petitioner with the view of
obtaining certain remedies. The applicant, therefore, does not bear the right to file a cross-petition or
even a cross-appeal, as this is a preserve of a respondent who has a claim against another party already
in the appeal (cross-appeal), or another party to the suit (cross-petition).
[32] Learned Senior Counsel, Mr. Ojiambo submitted that the issues which the applicant sought to
raise were live, before this Court. We have already outlined the issues that the applicant intends to raise,
upon being enjoined to the appeal. Does the applicant intend to introduce arguments different from those
of the other parties? The 2nd appellant intimates that, in Attorney General & Another v Royal Media
Services, Sup Ct. Petition No. 14C of 2014, one of the broad questions of law that this Court will be
asked to consider is, whether the rights of the 1st, 2nd and 3rd respondents, as enshrined under Article 34
of the Constitution, have been violated. Also in issue is the question whether the 1st, 2nd and 3rd
respondents are acting illegally. The 1st appellant asks the Court to address inter alia, the
constitutionality of CCK’s existence; the constitutionality of the Regulations; the scope of legitimate
expectation by the 1st, 2nd and 3rd respondents under the terms of Articles 33 and 34 of the Constitution;
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