Waiganjo v Unga Group Limited (Civil Application E036 of 2023) [2024] KECA 289 (KLR)
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
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether a case has been made to warrant an order of stay
- 2.Whether a case has been made to warrant an order of review
- 3.Who should bear the costs of this application
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
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- 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
Relief refused
#Stay of the ruling in the application dated 26th September 2018 and of consequential orders
The ruling had already been delivered on 29th January 2021 striking out the notice of appeal; there were no proceedings to be stayed or delivery to be arrested
Review of the ruling of 29th January 2021
No apparent clerical or arithmetical error was identified; the applicant sought to reopen a determined matter, which exceeds the Slip Rule and none of the exceptional grounds for substantive review was established
Leave to appeal out of time operating as stay
Jurisdiction under rule 5(2)(b) can only be invoked where there is a valid notice of appeal on record, which no longer existed after the notice was struck out
Costs
Each party to bear their own costs of the application.
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.
The upshot of the foregoing is that the notice of motion dated 11th July 2023 is without merit and is dismissed in its entirety.
We are therefore inclined to order that the parties bear their own costs of the application.
The slip rule does not allow or permit a court to give an order which alters the judgment or orders made earlier. It is for purposes of correcting clerical errors and giving efiect to the judgment of the court.
It is not for this court to speculate on jurisdiction and assign to each appeal a jurisdiction not specifically invoked by a party.
It is also a matter of judicial consensus that in very limited circumstances a court may undertake a substantive review of its judgment which goes beyond the borders of the miniscule jurisdiction granted by the “Slip Rule”.
Issues in the judgment
#The application invokes the Civil Procedure Rules, which the court states are inapplicable to proceedings before it; 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 judgment refers to 'the costs of this appeal' among the issues for determination although what was before the court was an application, not an appeal.
Quoted passage from Abote v. Kawaka contains the word 'uncertain' where 'unambiguous' would be expected, and the applicant's name appears rendered with inconsistent spelling in the transcript of the coram ('F. SICHALE').
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Waiganjo v Unga Group Limited (Civil Application E036 of 2023) [2024] KECA 289 (KLR)", 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.