Jonathan M. Waiganjo v Unga Group Limited
The bottom line
#Kenya's Court of Appeal dismissed a former Unga Group employee's bid to stay and review a ruling that had already struck out his notice of appeal.
What this practically means
#Executive summary
#Key legal issues
#Whether a stay of a already-delivered ruling could issue
No stay could be granted because the impugned ruling had already been delivered on 29th January 2021, striking out the notice of appeal with costs.
The application sought to arrest delivery of a ruling that had already been made. Once delivered, the only effect of the ruling was to strike out the notice of appeal and award costs; nothing remained to be stayed. Further, rule 5(2)(b) jurisdiction depends on a valid notice of appeal being on record, and the notice had been struck out, so the applicant had no surviving basis for a stay of any nature.
Whether the ruling could be reviewed under rule 37(1) of the Court of Appeal Rules (the Slip Rule)
No: the applicant identified no apparent clerical or arithmetical error, and the review he sought would alter the substance of the ruling, which the Slip Rule forbids.
Rule 37(1) embodies the Slip Rule, allowing correction of clerical or arithmetical mistakes or accidental slips. Relying on Sanitam Services and Outa, the court held such correction cannot generate controversy or change the substance of the judgment. The applicant instead sought to reopen and overturn a determined matter, which is outside the Slip Rule's scope.
Whether substantive review was warranted on the ground of non-service
No: the applicant was duly served by registered post at the postal address he himself gave in the notice of appeal, and his knowledge of the application negated any claim of fraud or deceit.
The court examined the notice of appeal, which showed the applicant's service address as 2971-30100 Eldoret, the same address used for service by registered post, with a return of service lodged. The applicant's admission that he visited the respondent's advocate's office seeking service showed he knew of the application. None of the exceptional Outa circumstances for substantive review, such as fraud or deceit, was established.
Whether an application pleaded under the Civil Procedure Rules is competent in the Court of Appeal
No: the Civil Procedure Rules do not apply to Court of Appeal proceedings, and the court could only speculate that the application was brought under rules 5(2)(b) and 37(1) of the Court of Appeal Rules.
The application cited no legal provision to invoke the court's jurisdiction, resting instead on the Civil Procedure Rules, which are inapplicable. The court warned, citing Abote v. Kawaka, that a litigant must invoke the relevant constitutional or statutory provision with clarity; failure to do so exposes an application to being struck out.
Legal principles established
#- A litigant must invoke the specific legal provision upon which a court is to exercise its discretion; failure to do so risks striking out of the application.
- The Slip Rule permits correction only of obvious errors that cannot change the substance of the judgment; it does not allow a court to sit on appeal over its own judgment.
- Substantive review beyond the Slip Rule is available only in limited circumstances, requiring proof of factors affronting the administration of justice or that there is no right of appeal.
- Rule 5(2)(b) jurisdiction can only be invoked where there is a valid notice of appeal on record.
Court orders
#- 1.The notice of motion dated 11th July 2023 is dismissed in its entirety
- 2.Each party to bear their own costs of the application
- Jurisdiction invoked
- Not specifically invoked; court speculated rules 5(2)(b) and 37(1) of the Court of Appeal Rules, 2022; inherent powers under sections 3A and 5 of the Appellate Jurisdiction Act read with rule 1(2) of the Court of Appeal Rules, 2022
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jonathan M. Waiganjo v Unga Group Limited", Case Analysis (2024). Not stated in the judgment (notice of motion dated 11th July 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/289/eng@2024-03-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.