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Court of AppealPartially AllowedCivil Appeal 107 of 2021· [2022] KECA 585 (KLR)

Tharaka Nithi County Government & another v Gaichu & 129 others

Court of Appeal
8 July 2022
WKW. KaranjaHOHannah OkwenguKLDr. K. I. Laibuta
2,821 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal threw out 130 former Village Administrators' appeal over missed procedural deadlines, so the dismissal of their unfair termination case stands.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal (Karanja, Okwengu and Laibuta, JJA) on a Notice of Motion by the Tharaka Nithi County Government and its Public Service Board under Rules 42, 43, 82, 83 and 84 of the Court of Appeal Rules, seeking striking out of the record of appeal or, alternatively, that the notice of appeal be deemed withdrawn. The underlying dispute concerned 130 Village Administrators whose employment was terminated in 2017; the ELRC at Meru (Nzioka wa Makau, J.) dismissed their claim on 2nd December 2019, holding they should first have appealed to the Public Service Commission under Section 77 of the County Governments Act. The applicants contended the appeals were incompetent because the letters requesting typed proceedings were neither filed within 30 days nor served on them, so the proviso to Rule 82 excluding typing time was unavailable and Rule 83 deemed the notices withdrawn. The court agreed. It further held that the 120th respondent, Eustace Ndeke, having filed a review under section 16 of the ELRC Act after lodging his notice of appeal, had by that conduct deemed his appeal withdrawn, amounting to abuse of process; his certificate of delay could not circumvent Rule 82. As to the 129 respondents, the letter bespeaking proceedings was never exhibited or served. The application, filed within 30 days of service of the record, was allowed: Civil Appeal No. 107 of 2021 was deemed withdrawn with costs to the applicants. The ELRC dismissal therefore stands undisturbed.

Key legal issues

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01

Pursuit of review after filing notice of appeal

Holding

The 120th respondent's appeal was deemed withdrawn because he filed a review under section 16 of the ELRC Act after lodging his notice of appeal.

Reasoning

The court held that a party cannot pursue an appeal and a review of the same judgment concurrently. Having elected to seek review, the appeal is deemed withdrawn, and such conduct amounts to abuse of the court process. The averment was not controverted by the 120th respondent.

p. 3
02

Compliance with Rule 82 proviso

Holding

Both sets of appellants failed to comply with Rule 82: the request for proceedings was either filed out of the 30 days or not served on the respondents, so typing time could not be excluded.

Reasoning

Rule 82(2) requires the application for proceedings to be in writing and served on the respondent. Mr Ndeke's letter of 27th January 2020 was outside the 30 days and not copied to the applicants; the 129 respondents never annexed the letter and the applicants denied service. The certificate of delay could not circumvent the rule.

p. 4
03

Consequence under Rules 83 and 84

Holding

Non-compliance with Rule 82 activates Rule 83, deeming the notice of appeal withdrawn; the striking-out application was made within 30 days of service of the record under Rule 84.

Reasoning

The court adopted its earlier exposition of Rule 83 as an inbuilt case-management clean-up mechanism against notices lodged in jest or parked to enjoy interim relief. The application having been filed within 30 days of service of the record on 3rd November 2020, it was competent and merited.

p. 5

Legal principles established

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  • An appellant cannot rely on the proviso to Rule 82(1) to exclude time taken to prepare proceedings unless the request for proceedings was made in writing within 30 days and a copy served on the respondent; a certificate of delay cannot cure this.
  • Failure to comply with Rule 82 triggers Rule 83: the notice of appeal is deemed withdrawn.
  • A litigant cannot simultaneously pursue an appeal and a review of the same judgment; doing so amounts to deemed withdrawal of the appeal and abuse of court process.

Court orders

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  1. 1.The application dated 21st November, 2020 is allowed
  2. 2.Civil Appeal No. 107 of 2021 is deemed as withdrawn with costs to the applicants

Authorities

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Legislation

  • Court of Appeal RulesRule 42
  • Court of Appeal RulesRule 43
  • Court of Appeal RulesRule 81
  • Court of Appeal RulesRule 82
  • Court of Appeal RulesRule 83
  • Court of Appeal RulesRule 84
  • Court of Appeal RulesRule 115
  • County Governments ActSection 77
  • Employment and Labour Relations Court ActSection 16

Cases cited (4)

  • John Mutai Mwangi & 26 Others vs. Mwenja Ngure & 4 Others
    [2016] eKLR

    Intent and purport of Rule 83 as an inbuilt case-management deeming provision

  • Muzaffer Musafee Essajee & Another vs. Anne Njeri Mwangi
    [2021] eKLR

    Supporting the Rule 83 deeming/withdrawal principle

  • Joyce Bochere Nyamweya v. Jemima Nyaboke Nyamweya & Another
    [2016] eKLR

    Mandatory nature of proviso to Rule 82; non-compliance renders appeal defective

  • MaeProper ties Limited vs. Joseph Kibe & Another
    [2017] eKLR

    Rules of court exist for orderly administration of justice; timelines command obedience

On appeal from
Employment & Labour Relations Court of Kenya at Meru
ELRC Cause No. 30 of 2018
Jurisdiction invoked
Rules 42, 43, 82, 83 and 84 of the Court of Appeal Rules (application to strike out/deem notice of appeal withdrawn)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (9)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Tharaka Nithi County Government & another v Gaichu & 129 others", Case Analysis (2022). Civil Appeal 107 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/585/eng@2022-07-08

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