Edward Ombwori Gichana v The Clerk, Nairobi City County Assembly & 2 others
The bottom line
#The Court of Appeal dismissed an attempt to halt proceedings because the notice of appeal was filed late, missing Kenya's strict 14-day deadline.
What this practically means
#Executive summary
#Key legal issues
#Arguability of the intended appeal
The issues raised - alleged failure to hear the applicant and the identity of the bona fide Clerk - are not idle and the appeal is arguable.
The court accepted that whether the judge failed to hear the applicant before voiding his appointment, and who the legitimate Clerk is, raise substantive questions fit for the intended appeal. Arguability, however, is only one limb; it does not by itself entitle the applicant to preservation orders.
Nugatory value
The applicant failed to demonstrate that the appeal would be rendered nugatory, since the judgment that would directly affect the application had not been arrested and its outcome was unknown.
The court reasoned that it could not assess nugatory value without knowing the outcome of the judgment slated for 16 November 2020, which was said to have a direct impact on the application. The prayer to arrest that judgment failed for want of time, so the speculative prejudice could not ground the relief sought.
Competence of the notice of appeal
The notice of appeal was incompetent because it was filed nearly one month after the impugned directions, outside the 14 days prescribed by Rule 75, and no extension of time had been granted; an incompetent notice cannot found a Rule 5(2)(b) application.
The 1st respondent demonstrated that the notice of appeal was lodged out of time without leave to enlarge time, and that a Rule 84 striking-out application was properly lodged within 30 days of service. The court treated this defect as the compelling reason for dismissing the application.
Compliance with Rule 84 striking-out timelines
The 1st respondent's striking-out application complied with Rule 84, being filed within 30 days of service of the notice of appeal.
The court noted that the requirement of Rule 84 - that an application to strike out a notice of appeal for late filing must itself be filed within 30 days of service of the notice - was demonstrated to have been complied with by the 1st respondent, reinforcing the basis for dismissing the applicant's motion.
Legal principles established
#- An application under Rule 5(2)(b) must be founded on a valid notice of appeal; a notice of appeal filed outside the 14-day period prescribed by Rule 75, and not saved by enlargement of time, cannot sustain such an application.
- An applicant under Rule 5(2)(b) must satisfy both limbs - that the appeal is arguable and that it would be rendered nugatory if not preserved.
Court orders
#- 1.The application under Rule 5(2)(b) of the Court of Appeal Rules is dismissed
- 2.Costs of the application awarded to the 1st respondent
- On appeal from
- Employment and Labour Relations Court at Nairobi
- Petition No. 194 of 2019
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules (application for stay/injunction pending appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Edward Ombwori Gichana v The Clerk, Nairobi City County Assembly & 2 others", Case Analysis (2020). Civil Application No. E305 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/29/eng@2020-12-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.