Tunoi & another v Judicial Service Commission & another; Njagi & another (Interested Parties) (Civil Application 122 of 2015) (9 June 2015) (Reasons) [2015] KECA 664 (KLR)
The bottom line
#Kenya's Court of Appeal halted a High Court case, confirming a stay is granted only when an appeal is both arguable and worth pursuing.
What this practically means
#Executive summary
#Key legal issues
#Arguability of the intended appeal
The intended appeal was arguable: the High Court consolidated two petitions suo moto without hearing the parties, and the status of the Attorney-General in the consolidated petition after his amicus application was dismissed raised further arguable points.
The Court applied the settled Rule 5(2)(b) principle that an appeal is arguable if it is not frivolous and raises issues meriting consideration; one arguable point suffices. It found that the High Court's suo moto consolidation of Petition No. 495 of 2014, which raised issues unrelated to the applicants' petition, without affording the parties a hearing was an arguable point on natural justice, as was the Attorney-General's status as a party after his amicus curiae application was dismissed.
Nugatory value of the intended appeal
The nugatory limb was satisfied because the consolidated petitions were scheduled for hearing on 21st and 22nd May 2015, before the intended appeal could be filed, heard and determined.
The Court reasoned that the intended appeal, though not frivolous, could not be filed, heard and determined before the scheduled hearing dates; hearing the consolidated petition would render any success in the appeal nugatory, and it would not be proper use of judicial time to proceed when the appeal could very well succeed. The applicants also would not be able to reverse proceedings since the appeal was not against the judgment that would follow.
Overriding objective and expanded discretion under Sections 3A and 3B of the Appellate Jurisdiction Act
Sections 3A and 3B of the Appellate Jurisdiction Act expand the Court's jurisdiction and derive legitimacy from Article 159 of the Constitution, conferring latitude in exercising discretion to achieve the overriding objective.
The Court traced the Rule 5(2)(b) principles and noted the additional expansion introduced by Sections 3A and 3B of the Appellate Jurisdiction Act, which aim at the just, expeditious, proportionate and affordable resolution of appeals. It accepted that these provisions confer considerable latitude in interpretation and in the exercise of discretion, and that they derive their legitimacy from Article 159 on judicial authority.
Legal principles established
#- On a Rule 5(2)(b) application the applicant must satisfy both the arguability and nugatory limbs; satisfying only one limb does not avail the applicant.
- A single arguable point suffices to establish that an appeal or intended appeal is arguable under Rule 5(2)(b).
Court orders
#- 1.Prayer 3 of the Notice of Motion dated 12th May 2015 granted - stay of further proceedings in Nairobi High Court Constitutional Petition No. 244 of 2014 pending the hearing and determination of the intended appeal (made on 19th May 2015 and reasons delivered 9th June 2015)
- 2.The applicants to file the appeal within 30 days of 9th June 2015
- 3.The President of the Court may consider fast-tracking the appeal so the issue is determined without delay
- On appeal from
- High Court of Kenya at Nairobi
- HCCC No. 244 of 2014 consolidated with Petition No. 495 of 2014
- Jurisdiction invoked
- Article 159(2)(d) of the Constitution, Sections 3A and 3B of the Appellate Jurisdiction Act and Rule 5(2)(b) of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Tunoi & another v Judicial Service Commission & another; Njagi & another (Interested Parties) (Civil Application 122 of 2015) (9 June 2015) (Reasons) [2015] KECA 664 (KLR)", Case Analysis (2015). Civil Application 122 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/664/eng@2015-06-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.