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Court of AppealOther· [2020] KECA 211 (KLR)

Gilgil Telcoms Industries Limited v Nderitu & 55 others & another (Civil Appeal (Application) 147 of 2018) [2020] KECA 211 (KLR)

Court of Appeal of Kenya
6 November 2020
WKW. Karanja
436 words in judgment
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The bottom line

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When an appeal only partly succeeds, either party can draft the court order, and all other High Court orders stay intact.

What this practically means

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Executive summary

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This is a short settlement-of-terms ruling delivered by W. Karanja, JA, in Nairobi on 6th November 2020, pursuant to Rules 33 and 34 of the Court of Appeal Rules. It followed the Court's judgment of 4th November 2016 (A. Visram, W. Karanja and J. Mohammed, JJA) which partially allowed an employment-related appeal in favour of the appellant, Prof. Tom Ojienda SC, by setting aside the High Court award of accrued salaries and house allowance arrears, with each party bearing its own costs. Telcom Kenya Limited, through its in-house legal advisor, contested aspects of the draft order and raised the timelines for drafting and serving the order. The court declined to engage with the timelines issue, holding that since the appeal only partially succeeded, both parties partially succeeded and either could have initiated the draft order. On the merits of the settlement, the court held that the 2016 judgment plainly set aside only the accrued salaries and house allowance award; all other High Court orders, including costs and the declaratory order that the respondents were entitled to benefits under the revised terms of service, remained undisturbed. The court found the Registrar's draft order dated 4th November 2016 accurately reflected the judgment and settled the terms accordingly. No authorities were cited and no new costs order was made.

Key legal issues

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01

Interpretation and settlement of the terms of a partial-success appeal order under Rules 33 and 34 of the Court of Appeal Rules

Holding

The judgment of 4th November 2016 set aside only the award of accrued salaries and house allowance arrears; all other High Court orders, including costs and the declaratory order, remained in force, and the Registrar's draft order accurately reflected the judgment

Reasoning

The court construed the dispositive part of the 2016 judgment. Because the appeal was allowed only in part, setting aside the accrued salaries and house allowance award, the remaining orders of the High Court stood. The declaratory order that the respondents were entitled to benefits under the revised terms of service derived from paragraph 29 of the judgment and was correctly captured in the Registrar's draft order. The timelines issue was deemed immaterial to the settlement of terms.

p. 2

Legal principles established

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  • Under Rule 34(2) of the Court of Appeal Rules, the duty to draft the order falls on the party substantially successful; where an appeal only partially succeeds, either party may initiate the draft order
  • Where a Court of Appeal sets aside a specific order of the High Court and no more, all other orders of the High Court, including the order on costs, remain intact

Court orders

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  1. 1.The terms of the order in the appeal are settled as per the draft order dated 4th November 2016 drawn by the Registrar of the Court of Appeal

Authorities

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Legislation

  • Court of Appeal RulesRule 33
  • Court of Appeal RulesRule 34(2)
On appeal from
High Court of Kenya
Not stated in the judgment
Jurisdiction invoked
Rules 33 and 34 of the Court of Appeal Rules

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Gilgil Telcoms Industries Limited v Nderitu & 55 others & another (Civil Appeal (Application) 147 of 2018) [2020] KECA 211 (KLR)", Case Analysis (2020). . Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/211/eng@2020-11-06

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.