Gichana, The Clerk, Nairobi City County Assembly v Ngwele & 3 others
The bottom line
#Kenya's Court of Appeal ruled it cannot add new parties to an appeal or reopen decided rulings unless truly exceptional circumstances are shown.
What this practically means
#Executive summary
#Key legal issues
#Whether the Court may join as a party on appeal a person who was not a party before the trial court
No. Neither the Appellate Jurisdiction Act nor the Court of Appeal Rules provides for admitting a person who was not a party in the trial court as a respondent on appeal, and Rule 31 does not confer such power.
The Court construed Rules 31, 35 and 57(2). Rule 31's power to confirm, reverse, vary, remit or order a new trial does not include adding or substituting parties. The applicant's complaints arose after the appeal was filed and concern the Acting Clerk's conduct, not the grounds of appeal. Joinder would convolute the issues and bring no value to the appeal's determination.
Whether the Court's ruling of 4th June, 2021 could be reviewed, varied or rescinded
No. The residual jurisdiction to review exists but is exceptional and circumscribed; the applicant failed to demonstrate exceptional circumstances.
Relying on Benjoh Amalgamated, Mukuru Munge and Niels Bruel, the Court held that the residual power to reopen decided matters balances the finality principle against the justice principle and must be exercised sparingly. The applicant's grievances stemmed from the Acting Clerk's post-ruling conduct, which occurred long after the impugned orders and were alien to the issues on appeal.
Whether Articles 48, 50 and 159 of the Constitution could override the procedural bar on joinder
No. Article 159(2)(d) is not a panacea for all procedural ills and does not avail the applicant.
The Court adopted the crystallized case law on Article 159, holding that while the jurisdiction is unfettered where procedural technicalities impede justice, the principle does not cure every procedural shortcoming. The applicant's application failed on substance, not mere technicality, so the constitutional provisions did not assist him.
Legal principles established
#- Rule 31 of the Court of Appeal Rules does not confer power on the Court to add or substitute parties on appeal.
- The Court has residual jurisdiction to review its own decisions, exercisable only in exceptional circumstances and with circumspection.
- Correction of an order under Rule 35 is limited to clerical or arithmetical mistakes or accidental slips, and the applicant must have a stake in the proceedings.
Court orders
#- 1.The applicant's application dated 23rd November, 2021 dismissed (affirming the orders of 14th February, 2022)
- 2.The respondents to the application to have costs of the application
- On appeal from
- Employment and Labour Relations Court
- Nairobi ELRC Petition No. 194 of 2019
- Jurisdiction invoked
- Articles 48, 50 and 159 of the Constitution of Kenya, 2010; section 3A of the Appellate Jurisdiction Act, Cap 9; Rules 31, 35 and 57(2) of the Court of Appeal Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gichana, The Clerk, Nairobi City County Assembly v Ngwele & 3 others", Case Analysis (2022). Civil Appeal (Application) E255 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/423/eng@2022-03-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.