Odongo v Clerk, Nakuru County Assembly & 5 others (Civil Appeal (Application) E001 of 2023) [2023] KECA 1554 (KLR)
The bottom line
#The Court of Appeal refused to send this county recruitment dispute to the Supreme Court, saying it raised no issue of general public importance and that it could no longer grant stays after judgment.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the application for certification of the intended appeal as involving a matter of general public importance under Article 163(4)(b) is merited
- 2.Whether the court can grant a stay of proceedings and dismissal of Nakuru ELRC Petition No. E017 of 2022 and Nakuru ELRC Petition No. E001 of 2023 pending the intended appeal to the Supreme Court
Key legal issues
#Whether the intended appeal raises a matter of general public importance warranting certification under Article 163(4)(b)
It does not. The applicant failed to show that the settled findings of the impugned judgment require Supreme Court consideration or impact third parties, and did not cite the contradictory decisions he alleged.
Applying the Hermanus Phillipus Steyn principles, the court found the applicant had not set out why the elements of settled law in the impugned judgment require Supreme Court consideration or how they impact on third parties. Although the respondents acknowledged possible conflicting jurisprudence on ELRC jurisdiction, the applicant cited no contradictory decisions, and the court found no express pronouncements by the High Court or ELRC on the issue. The constitutional-interpretation argument under Gatirau Peter Munya also failed.
Whether the court could stay proceedings and the dismissal of the two ELRC petitions pending the intended appeal
It could not; the court, having delivered its judgment, is functus officio and lacks jurisdiction to grant such orders.
Relying on Telkom Kenya Limited v John Ochanda and Dickson Muricho Muriuki v Timothy Kagondu Muriuki as submitted by the respondents, the court accepted that any consideration of stay orders would amount to re-examining a matter it had already determined conclusively. Having rendered itself through the impugned judgment, the court is functus officio and cannot entertain prayers for stay pending an appeal to the Supreme Court.
Legal principles established
#- A party seeking certification under Article 163(4)(b) must do more than assert contradictory decisions; the intending appellant must identify and demonstrate specific elements of general public importance transcending the particular case.
- The Court of Appeal is functus officio after delivering judgment and lacks jurisdiction to grant a stay of proceedings or stay of its own dismissal pending an intended appeal to the Supreme Court.
- Litigation must attain finality; a matter cannot be reopened before the Supreme Court merely because a litigant disagrees with the outcome below.
Court orders
#- 1.The application dated 28th April 2023 is dismissed
- 2.Each party is to bear their own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Employment and Labour Relations Court, Nakuru
- Nakuru ELRC Petition No. E017 of 2022
- Jurisdiction invoked
- Article 163(4) of the Constitution; rules 24 and 26 of the Supreme Court Rules; rule 40 of the Court of Appeal Rules
Relief refused
#Certification of Nakuru CACA No. 136 of 2022 as a matter of general public importance and leave to appeal to the Supreme Court
The applicant failed to demonstrate any substantial issue of law transcending the parties' interests or affecting the public
Stay of proceedings and dismissal of Nakuru ELRC Petition No. E017 of 2022 and Nakuru ELRC Petition No. E001 of 2023
The Court of Appeal is functus officio after rendering its judgment and lacks jurisdiction to grant such orders
Costs
Each party is to bear their own costs.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Having carefully considered the grounds in support of certification, we cannot deduce any substantial issue of law to be determined or any matter that affects the general public interest.
It is not enough for the applicant to merely state that there are contradictory decisions. We have also not found any express pronouncements by the judgments of the High Court and the ELRC addressing this issue.
the prayer is not available, as this court is functus officio and lacks the jurisdiction to grant such orders.
In the result, we find that the application lacks merit and it is dismissed. Each party is to bear their costs.
The requirement for certification by both the Court of Appeal and the Supreme Court is a genuine filtering process to ensure that only appeals with elements of general public importance reach the Supreme Court.
Issues in the judgment
#The judgment inconsistently names the respondents' case law on functus officio as relied upon by respondents while the court itself adopts the functus officio position without independent analysis; also the grounding affidavit alternately cites Sections 77 and 88 and Sections 77 and 87 of the County Governments Act for exhaustion, and the impugned judgment's exhaustion basis is recited as Sections 77 and 87 in one passage and Sections 77 and 85/87 in the questions for determination.
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.
- Association of Retirement Benefits Schemes v Attorney General & 3 others (Civil Application Sup E007 of 2022) [2024] KECA 286 (KLR)[2024] KECA 286 (KLR)8 Mar 2024followed
Cite this brief
#Cite this brief
Caselaw, "Odongo v Clerk, Nakuru County Assembly & 5 others (Civil Appeal (Application) E001 of 2023) [2023] KECA 1554 (KLR)", Case Analysis (2023). Nakuru CACA No. 136 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/1554/eng@2023-12-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.