Amani National Congress Party & 2 others v Shimenga & another
The bottom line
#Kenya's Court of Appeal confirmed that filing a notice of appeal does not stop a party from asking the Political Parties Disputes Tribunal to review its own decision.
What this practically means
#Executive summary
#Key legal issues
#Whether a notice of appeal precludes a subsequent application for review before the Tribunal.
No. A notice of appeal intended for an appeal to the High Court from the Tribunal is an unknown document of no legal force, and even a proper notice of appeal is only a manifestation of intention to appeal, not the preferment of an appeal; it does not bar review.
The Court distinguished between a notice of appeal and a memorandum of appeal: appeals from the Tribunal to the High Court are originated by a memorandum under Order 41(1), not a notice. Rule 45(1) CPR permits review where no appeal has been preferred. Multichoice, a five-Judge bench convened to settle the question, authoritatively held that a notice of appeal is not the appeal itself and is no bar to review; Otieno Ragot and Kisya Investments, resting on Kisya alone, are outliers.
Whether the deeming of a notice of appeal as an appeal under Order 42 Rule 6(4) converts it into an appeal.
No. The deeming is a statutory fiction confined to conferring jurisdiction for interlocutory relief such as stay of execution pending appeal.
Relying on Griffith C.J. in Muller v Dalgety & Co Ltd, the Court explained that 'deemed' creates a statutory fiction whose scope must be ascertained from its purpose. The fiction in Order 42 Rule 6(4) exists only to enable stay of execution, injunction and like applications; it does not in actuality convert a notice of appeal into an appeal.
Whether the High Court Judge erred in preferring Otieno Ragot over Multichoice on the purported conflict in Court of Appeal authority.
Yes. The conflict was more apparent than real; Multichoice, the later decision of an extraordinary five-Judge bench empaneled to settle the question, was binding on the Judge.
The Judge had treated the Court of Appeal as conflicted between Otieno Ragot and Multichoice and chosen Otieno Ragot. Kiage JA, who sat on both benches, explained that Multichoice was empaneled precisely to resolve the divergence, that all its Judges concurred in Ouko P's lead judgment, and that by the weight of precedent Otieno Ragot and Kisya Investments are 'black swans' not reflecting the Court's thinking.
Legal principles established
#- A notice of appeal filed in respect of an appeal to the High Court from the Political Parties Disputes Tribunal is not a document contemplated by the applicable rules and has no legal force; it does not amount to preferring an appeal and does not preclude a party from applying for review.
- Multichoice (Kenya) Limited v Wananchi Group is the authoritative and binding pronouncement that the filing of a notice of appeal is a mere manifestation of intention to appeal and no bar to review; lower courts are bound by it.
- A party who has filed a notice of appeal and elects to pursue review need not first withdraw the notice of appeal; only a filed appeal must be withdrawn.
Court orders
#- 1.Appeal allowed.
- 2.Judgment of the High Court (Musyoka, J.) dated 27th May 2022 reversed/set aside.
- 3.Matter remitted to the Political Parties Disputes Tribunal for the expedited hearing of the appellants' review application dated 28th April 2022.
- On appeal from
- High Court of Kenya at Kakamega
- High Court Elections Appeal No. E001 of 2022
- Jurisdiction invoked
- Appeal from the High Court sitting in appeal over the Political Parties Disputes Tribunal, under the Political Parties Act; the judgment does not cite a specific appellate provision.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Amani National Congress Party & 2 others v Shimenga & another", Case Analysis (2022). Election Petition Appeal E001 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/740/eng@2022-06-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.