Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealPartially AllowedElection Petition Appeal E001 of 2022· [2022] KECA 740 (KLR)

Amani National Congress Party & 2 others v Shimenga & another

Court of Appeal
24 June 2022
4,523 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

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

#
This Court of Appeal (Kisumu) judgment delivers the reserved reasons for a decision of 7th June 2022 allowing the appellants' appeal against Musyoka J.'s judgment of the High Court at Kakamega, which had restored the Political Parties Disputes Tribunal's award of the Ikolomani nomination to the 1st respondent after setting aside the Tribunal's own ruling granting the appellants a review. The single issue was whether the filing of a notice of appeal by the appellants precluded them from pursuing a review application before the Tribunal. Kiage JA, with Ngugi and Tuiyott JJA concurring, held that a notice of appeal in appeals from the Tribunal to the High Court is an unknown document of no legal force, since such appeals are originated by memorandum of appeal under Order 41(1). More broadly, adopting Multichoice (Kenya) Limited v Wananchi Group, a five-Judge bench decision empaneled precisely to settle the question, the Court affirmed that a notice of appeal is a mere manifestation of intention to appeal, not the preferment of an appeal, and does not bar review; the deeming provision in Order 42 Rule 6(4) is a statutory fiction confined to interlocutory relief. Otieno Ragot and Kisya Investments were dismissed as 'black swans'. The Court held the Tribunal had jurisdiction to entertain the review, reversed the High Court, and remitted the review application to the Tribunal for expedited hearing. No costs order was made.

Key legal issues

#
01

Whether a notice of appeal precludes a subsequent application for review before the Tribunal.

Holding

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.

Reasoning

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.

p. 5
02

Whether the deeming of a notice of appeal as an appeal under Order 42 Rule 6(4) converts it into an appeal.

Holding

No. The deeming is a statutory fiction confined to conferring jurisdiction for interlocutory relief such as stay of execution pending appeal.

Reasoning

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.

p. 6
03

Whether the High Court Judge erred in preferring Otieno Ragot over Multichoice on the purported conflict in Court of Appeal authority.

Holding

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.

Reasoning

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.

p. 5

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. 1.Appeal allowed.
  2. 2.Judgment of the High Court (Musyoka, J.) dated 27th May 2022 reversed/set aside.
  3. 3.Matter remitted to the Political Parties Disputes Tribunal for the expedited hearing of the appellants' review application dated 28th April 2022.

Authorities

#

Legislation

  • Civil Procedure RulesOrder 42 Rule 1(1)
  • Civil Procedure RulesOrder 41(1)
  • Civil Procedure RulesRule 45(1)
  • Civil Procedure RulesOrder 42 Rule 6(4)
  • Civil Procedure RulesOrder 44 rule 1
  • Civil Procedure RulesOrder 41 rule 4(4)
  • Civil Procedure Act
  • Political Parties Actsection 40
  • Rules under the Political Parties Act

Cases cited (11)

  • Chairman Board of Governors Highway Secondary School v William Muosi Moi
    [2007] eKLR

    A notice of appeal is only a formal notification of intention to appeal and does not amount to preferring an appeal.

  • Otieno Ragot & Company Advocates v National Bank of Kenya Limited
    [2020] eKLR

    Held there can be no review once an intention to appeal is intimated by filing a notice of appeal; conduct described as gambling with the judicial process.

  • Pancras T. Swai v Kenya Breweries Limited
    [2014] eKLR

    Cited by the 1st respondent for the position that grievances against a Tribunal judgment lie in appeal, not review.

  • Multichoice (Kenya) Limited v Wananchi Group (Kenya) Limited & 2 Others
    [2020] eKLR

    Authoritative holding that filing a notice of appeal is a mere manifestation of intention to appeal and no bar to review.

  • Kisya Investments Limited v Attorney General & Another
    [1966] eKLR

    Took the preclusion posture; sole authority relied on by the Otieno Ragot bench.

  • Equity Bank Limited v West Link MBO Limited
    [2013] eKLR

    Took the 'mere intent' position on notices of appeal.

  • Motel Schwetser v Thomas Cunningham & Another
    [1955] 22 EACA 252

    Early authority that a notice of appeal is only a formal notification of intention to appeal.

  • I. C. Kamau Ndirangu v Commercial Bank of Africa Limited
    (1994) eKLR

    A mere filing of notice of appeal did not constitute preferment of an appeal; Order 41 rule 4(4) is confined to staying execution.

  • Yani Haryanto v ED & F Man (Sugar) Ltd
    Civil Appeal No 122 of 1992 (unreported)

    A mere filing of notice of appeal did not constitute preferment of an appeal.

  • Noradhco Kenya Limited v Gloria Michele
    (1998) eKLR

    The filing of a notice of appeal cannot deprive a party of the right under O.44 r.1 to apply for review.

  • Muller v Dalgety & Co. Ltd
    (1909) 9 CLR 693

    The word 'deemed' commonly creates a statutory fiction; its purpose must be considered.

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.