Attempts by former Nairobi County Assembly Clerk Jacob Ngwele to appeal several decisions by lower courts that ruled – his appointment as the Clerk of the County Assembly was unprocedural have hit a ‘dead end’.
Ngwele has frantically fought to have himself back at City Hall but it’s now ‘cast in stone’ that he will never return as the Clerk.
Unless in another position as an elected or nominated MCA, Speaker or an employee of the County Assembly Service Board.
Appellate Judges Daniel Musinga , Abida Ali Aroni and John Mativo in a ruling delivered on 28th July 2023, held that Ngwele did not raise any novel issues for determination by the Supreme Court.
He had intended to lodge an appeal at the Supreme Court after he was ousted.
“The issues he is raising in his application have been raised and determined by various courts before and are, in our view, well settled. They do not transcend the litigation interests of the parties herein, nor do they raise any issues of general public importance,” the Judges ruled.
The Judges said that it is their considered view that there will be no jurisprudential value in having the Supreme Court address itself to the issues identified by Ngwele.
Ngwele had sued the Speaker of the Assembly and the Nairobi City County Assembly Service Board.
The Judges (Nambuye, Mbogholi & Laibuta JJ.A.) vide a comprehensive judgment delivered on 1st April 2022, held, that Ngwele had never been appointed and approved as Clerk of the Assembly in accordance with the mandatory provisions of section 13(1) of the County Governments Act, 2012 and section 18(1) and (2) of the County Assembly Services Act, 2017.
The Court accordingly dismissed the appeal and upheld the trial court’s judgment delivered on 16th October 2020.
It was that decision which Ngwele intended to appeal against at the Supreme Court.
According to Ngwele, there exists a state of uncertainty in the law resulting from contradictory precedents, both at the Employment and Labour Relations Court and the High Court regarding the appointment and approval of clerks seconded to various county assemblies by the Transition Authority.
This is upon the establishment of the devolved system of government.
He thus thought it necessary that he be granted leave to lodge an appeal at the apex court to obtain clarity and achieve a resolution of the uncertainty.
“It is contended that the applicant did not file a notice of appeal within the 14 days’ period contemplated under rule 36(1) of the Supreme Court Rules and if he did, then he did not serve it on all parties within 7 days of filing it as per the requirements of rule 37 of the same Court’s Rules,”
“The issues raised herein by the applicant do not, in our view, transcend the applicant’s personal interests. We have looked at the pleadings filed before the trial court and the orders sought by the applicant in the trial court and in this Court and fully agree with the respondents that they are related to the applicant in personal capacity,” the appellate Judges said.
The ruling is a big blow and the “last nail on the coffin” of Ngwele’s attempts to get back to City Hall as a Clerk.