Nyandoro & another v Wafula & 10 others (Civil Application E260 & E284 of 2024 (Consolidated)) [2024] KECA 888 (KLR)
The bottom line
#Kenya's Court of Appeal paused a ruling that had removed the Chief Land Registrar, holding that filing an appeal notice—served or not—gives the court jurisdiction.
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 failure to serve the notice of appeal on some respondents divests the Court of jurisdiction over the Rule 5(2)(b) applications
- 2.Whether an advocate not on record in the court below requires leave to come on record on appeal
- 3.Whether the intended appeals are arguable
- 4.Whether the appeals would be rendered nugatory if stay is not granted
- 5.Whether the public interest favours a stay of the ELRC judgment
Key legal issues
#Effect of non-service of the notice of appeal on the Court's jurisdiction under Rule 5(2)(b)
Jurisdiction attaches upon filing of the notice of appeal; service is not the operative event. Non-service on contested facts does not fit a preliminary objection and should be met by an application to strike out the notice.
The respondents objected that they were not served with the notice of appeal under Rule 79(1), invoking Kiage JA's minority opinion in Nick Salat. The Court held that filing, not service, confers jurisdiction, and that since the respondents had not applied to strike out the notice, the objection failed. Unlike in Salat, no striking-out application had been made, so the minority opinion was inappropriate here.
Whether leave is needed for an advocate new to the appeal to come on record
No leave or consent is required; appeal proceedings are independent of the trial proceedings, so Order 9 Rule 9 has no application.
The argument that Prof. Tom Ojienda & Co. Advocates could not act without leave presupposed that appeals continue the first-instance proceedings. The Court rejected this, restating its recent decisions in County Government of Kakamega v Sila Munyao and South Nyanza Sugar Co. v Prof. Riewa Onyango Genga that the point is settled.
Arguability of the intended appeals
The appeals were arguable: grounds including alleged usurpation of the PSC's constitutional role and alleged factual errors on the NIS report raised bona fide points worthy of interrogation.
Applying the low threshold from Stanley Kangethe Kinyanjui and Mumo Matemu, the Court held it is slow to deem an appeal unarguable at the interlocutory stage, doing so only in the plainest case. The grounds attacking the trial court's interference with the PSC's appointment decision and its treatment of the NIS adverse reports were not frivolous.
Whether the appeals would be rendered nugatory and whether public interest favoured a stay
Stay granted: maintaining the status quo (Nyandoro in office) avoided a ping-pong of office holders, the risk of contempt against the Principal Secretary, and uncertainty arising from Mburu's letter declining the position.
Mburu had never occupied the office and had written declining appointment; Nyandoro had held office since 17 November 2023. Requiring revolving appointment pending appeal would not conduce to good order in a pivotal land administration office, and no clear and present danger to the public interest arose from maintaining the status quo ante.
Legal principles established
#- The jurisdiction of the Court of Appeal under Rule 5(2)(b) is premised on the filing, not the service, of a notice of appeal; non-service is addressed by an application to strike out, not a preliminary objection, and cannot be raised on contested facts
- Appeal proceedings are independent of the proceedings before the first-instance court; an advocate requires neither the consent of previous advocates nor leave of the court below to come on record on appeal (Order 9 Rule 9 does not apply)
- In Rule 5(2)(b) applications the Court now considers triple principles: arguability, nugatory aspect, and, in appropriate cases arising from public interest litigation, the public interest test, applied sequentially
- The threshold for arguability is low: a single bona fide point worthy of consideration suffices; the point need not be one that must necessarily succeed
Court orders
#- 1.Stay of execution of the judgment of the Employment and Labour Relations Court dated 24th May 2024 granted on all three limbs (arguability, nugatory aspect and public interest)
- 2.The two appeals consolidated and to be heard on a priority basis in the next court term
- 3.Appellants to serve records of appeal on any party not yet served within 7 days
- 4.Appellants to file and serve written submissions, lists and bundles of authorities within 21 days
- 5.Respondents to file and serve written submissions, lists and bundles of authorities within 21 days of service
- 6.Appellants at liberty to file further or supplementary affidavits in reply within 7 days of being served with respondents' submissions
- 7.Costs of the applications to be in the appeals
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Employment and Labour Relations Court
- Trio of consolidated petitions (judgment of Ongaya, J. dated 24th May 2024)
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules (application for stay of execution/injunction pending appeal)
- Consolidated with
- Application dated 28th May 2024 (Nyandoro) consolidated with application dated 6th June 2024 (Attorney General)
Relief refused
#Striking out of Nyandoro's motion on account of non-service of the notice of appeal
The operative event is the filing, not the service, of the notice of appeal; and on contested facts the proper remedy was an application to strike out, not a preliminary objection
Costs
Costs of the stay applications to be in the appeals (the ELRC judgment itself had ordered 'Each party to bear own costs of the consolidated petitions')
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.
It is enough that such notice of appeal be lodged in our registry for us to assume jurisdiction. Our understanding of the matter is that the operative event is the filing of the notice of appeal and not its service.
We have no doubt that appeal proceedings are independent, and an advocate therein requires neither the consent of the previous advocates nor leave of the court below to come on record.
Thus, it is proper to now state that in Rule 5(2) (b) applications, this Court considers, not just the longestablished twin principles, but in appropriate cases triple principles where the third is the public interest test, in a sequential manner.
The conclusion we arrive at then is that on all three limbs the applicants have made a case for the grant of the orders of stay of execution as prayed in the two applications, with the costs thereof being in the appeals.
Given the patent urgency of this matter and in the public interest, we order that the two appeals be and are hereby consolidated. They shall be processed and heard on a priority basis in the next Court term immediately after the expiry of the timelines hereunder.
Order accordingly.
Issues in the judgment
#The supporting affidavit of Nyandoro is dated 28th May 2024 in the opening paragraph but appears in the text as 'sworn on 28th May 2021', an apparent typographical error
The replying affidavit of Janerose Karanja is stated as sworn on 5th November 2023, which predates the judgment it responds to (24th May 2024), an apparent date error
Florence W. Muturi's affidavit is dated 28th June 2023, again predating the judgment under appeal, an apparent date error
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nyandoro & another v Wafula & 10 others (Civil Application E260 & E284 of 2024 (Consolidated)) [2024] KECA 888 (KLR)", Case Analysis (2024). Consolidated applications dated 28th May 2024 and 6th June 2024 (Court of Appeal, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/888/eng@2024-07-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.