Kenya Union of Post Primary Education Teachers (KUPPET) & 3 others v Kamau & another; Teachers Service Commission (Interested Party)
The bottom line
#Kenya's Court of Appeal dismissed KUPPET's bid to pause an employment ruling because the union never filed a notice of appeal.
What this practically means
#Executive summary
#Key legal issues
#Whether the applicant satisfied the requirements for stay of execution and injunction pending appeal
The application fails: the applicant seeks to stay negative orders, has filed no notice of appeal, and demonstrated neither an arguable appeal nor that the appeal would be rendered nugatory.
The ruling under attack struck out two applications for non-compliance with Order 9 Rule 9 on change of advocates after judgment. That is a striking-out order, not a positive order capable of being restrained. Under Rule 5(2)(b) an applicant must show an arguable appeal and that it will be rendered nugatory; the applicant annexed no memorandum of appeal and made no submissions on these principles. The Court therefore had no jurisdiction to grant the relief sought.
Whether the absence of a notice of appeal could be cured by an amended omnibus application seeking extension of time
No. Extension of time applications lie before a single Judge under Rule 55(1); the knee-jerk amendment before the full bench was a misguided step that could not remedy the jurisdictional defect.
Rule 77 requires a person desiring to appeal to lodge a notice of appeal within fourteen days of the decision. The applicant expressly admitted no notice of appeal had been filed. Citing Salat, the Court held the notice of appeal is a jurisdictional prerequisite. The proper course was a single-Judge application addressing the reasons for delay; amending the pending omnibus application without leave could not confer jurisdiction on the Court.
Legal principles established
#- A notice of appeal is a jurisdictional prerequisite to invoking the appellate jurisdiction of the Court of Appeal.
- There is no jurisdiction to grant relief under Rule 5(2)(b) where the order below resulted in dismissal or striking out, or where no order capable of being restrained was made.
- An application for extension of time to file a notice of appeal must be heard by a single Judge under Rule 55(1) and cannot be brought by omnibus application before a full bench.
Court orders
#- 1.The application (both the notice of motion dated May 11, 2022 and the amended notice of motion dated June 9, 2022) is dismissed
- 2.Costs of the application awarded to the respondents
- On appeal from
- Employment and Labour Relations Court of Kenya at Nairobi
- Employment and Labour Relations Court Case No. 980 of 2012
- Jurisdiction invoked
- Rules 41, 42, 43, 45, 47 and 49 of the Court of Appeal Rules; Sections 3 & 3A of the Appellate Jurisdiction Act; Articles 50(1) and 159(2)(d) and (e) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Praxides Akoth Oduor v Liberty Eagle Liomited & another [2016] KEELRC 48 (KLR)[2016] KEELRC 48 (KLR)22 Sept 2016
Cite this brief
#Cite this brief
Caselaw, "Kenya Union of Post Primary Education Teachers (KUPPET) & 3 others v Kamau & another; Teachers Service Commission (Interested Party)", Case Analysis (2022). Civil Application E153 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1313/eng@2022-12-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.