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Court of AppealPartially AllowedCivil Appeal (Application) E080 of 2022· [2022] KECA 1326 (KLR)

Nairobi City Council v Tom Ojienda & Associates

Court of Appeal
2 December 2022
KMK. M'INOTIKLK. I. LAIBUTAMGM. GACHOKA
2,105 words in judgment
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The bottom line

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Kenya's Court of Appeal paused a Kshs 5.4 billion fee re-taxation dispute against Tom Ojienda & Associates until the Council's appeal is heard.

What this practically means

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Executive summary

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The Nairobi City Council applied under rules 1(2), 5(2)(b) and 42 of the Court of Appeal Rules, 2010 for a stay of proceedings in ELRC Misc. Application No. 171 of 2017, including the re-taxation of Tom Ojienda & Associates' bill of costs, pending an appeal against the ruling of James Rika, J. of the Employment and Labour Relations Court delivered on 22 July 2021. The judge had ordered re-taxation of item 1 of the bill taking into account a subject-matter value of Kshs 5,444,697,804, having set aside the taxing master's award of Kshs 448,328. The respondent opposed, arguing there was no proper notice of appeal (it having been filed before leave was obtained), that the appeal was not arguable, and that public interest favoured refusal. The court first addressed jurisdiction, holding that a notice of appeal was on record for purposes of rule 77 and that the validity of the notice - including whether it was filed without leave - was not for determination in a rule 5(2)(b) application, the respondent having made no striking-out application under rule 86. Applying the twin principles, the court found the grounds of appeal arguable and held that re-taxation on the judge's directed valuation would render the pending appeal an academic exercise, making maintenance of the status quo in both parties' interest. The application was allowed with costs abiding the outcome of the appeal. The decision binds subordinate courts and tribunals on the twin rule 5(2)(b) principles and on the treatment of notice-of-appeal validity objections in stay applications.

Key legal issues

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01

Jurisdiction where the notice of appeal is alleged to have been filed before leave was obtained

Holding

A notice of appeal is on record for purposes of rule 77; the validity of the notice is not for determination in a rule 5(2)(b) application, and the respondent never applied to strike it out under rule 86

Reasoning

The court found a notice of appeal dated July 26, 2021 on record with letters requesting proceedings copied to the respondent. Relying on National Industrial Credit Bank v Wasike, it held that rule 5(2)(b) does not require a valid notice of appeal, only one lodged in accordance with rule 77; validity is determined under rule 80/86 on a striking-out application, none of which was made.

p. 3
02

Whether the intended appeal is arguable

Holding

The grounds of appeal - retainer not proved, interlocutory application with no monetary value, taxing master's discretion, and the legal/factual basis of the Kshs 5,444,697,804 figure - are arguable

Reasoning

The court considered the memorandum of appeal grounds and found them arguable, applying the principle that an arguable appeal need not necessarily succeed but ought to be argued fully, leaving the merits to the bench that will hear the appeal.

p. 4
03

Whether the appeal will be rendered nugatory absent a stay

Holding

A stay of proceedings is necessary because re-taxation on the Kshs 5,444,697,804 valuation would render the pending appeal an academic exercise if the court disagreed with the judge's holding

Reasoning

The core of the intended appeal is the value assigned to the subject matter for re-taxation. The court held maintenance of the status quo was in the interest of both parties: if re-taxation proceeded on the judge's directed valuation and the appeal succeeded, the appeal would be rendered an academic exercise.

p. 4

Legal principles established

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  • An applicant under rule 5(2)(b) must satisfy the twin principles of an arguable appeal and that the appeal will be rendered nugatory absent a stay
  • A party invoking rule 5(2)(b) jurisdiction must first file a notice of appeal in accordance with rule 77; the validity of the notice is not determined in a rule 5(2)(b) application absent a striking-out application
  • A single arguable issue suffices under rule 5(2)(b); the applicant need not show the point would succeed

Court orders

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  1. 1.Stay of further proceedings in ELRC Misc Application 171 of 2017, including the retaxation of the respondent's bill of costs dated November 27, 2017, pending the hearing and determination of the intended appeal
  2. 2.Costs of the application to abide the outcome of the appeal

Authorities

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Legislation

  • Court of Appeal Rules, 2010rule 1(2)
  • Court of Appeal Rules, 2010rule 5(2)(b)
  • Court of Appeal Rules, 2010rule 42
  • Court of Appeal Rules, 2010rule 58(1)
  • Court of Appeal Rules, 2010rule 77
  • Court of Appeal Rules, 2010rule 74
  • Court of Appeal Rules, 2010rule 80
  • Court of Appeal Rules, 2010rule 86

Cases cited (10)

  • David Morton Silversein -vs- Atsango Chesoni
    [2002] eKLR

    Twin principles for stay: arguable appeal and appeal rendered nugatory absent stay

  • Reliable Bank Ltd (in liquidation) v Norlake Investments
    [2002] 1 EA 227

    Twin principles for stay of execution or proceedings

  • Nation Newspapers Limited v Peter Baraza Rabando
    CA No 1 [2007] eKLR

    Twin principles for stay

  • Republic v Kenya Anti-Corruption Commission & 2 others
    [2009] eKLR 31

    Twin principles for stay

  • Transouth Conveyors Limited v Kenya Revenue Authority & another
    [2007] eKLR, CA No 37 of 2007

    A single arguable issue suffices; applicant need not show the point would succeed

  • Retreat Villas Limited v Equatorial Commercial Bank Limited & 2 others
    CA No 40 of 2006

    Serious question of law or reasonable argument suffices for arguability

  • Phoenix of EA Assurance Company Limited v S M Thiga t/a Newspaper Service
    [2019] eKLR

    A suit filed devoid of jurisdiction is dead on arrival and cannot be remedied

  • Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 6 others
    [2013] eKLR

    A notice of appeal is a primary document to be filed outright; it is a jurisdictional prerequisite

  • National Industrial Credit Bank Ltd v Aquinas Francis Wasike & another
    CA No Nai 238 of 2005

    Validity of notice of appeal not determined in a rule 5(2)(b) application absent a striking-out application

  • Kenya Commercial Bank Limited v Nicholas Ombija
    [2009] eKLR

    An arguable appeal need not necessarily succeed but ought to be argued fully

On appeal from
Employment and Labour Relations Court at Nairobi
Employment and Labour Relations Court Misc. Appl. No. 171 of 2017
Jurisdiction invoked
Rules 5(2)(b), 1(2), 42 and 77 of the Court of Appeal Rules, 2010

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (20)

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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, "Nairobi City Council v Tom Ojienda & Associates", Case Analysis (2022). Civil Appeal (Application) E080 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1326/eng@2022-12-02

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