Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealDismissedNot stated in the judgment

Akoko v National Police Service Commission (Civil Appeal 686 of 2021) [2024] KECA 485 (KLR)

Court of Appeal
9 May 2024
2,550 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal confirmed that review only fixes obvious errors on a court record; disputed facts and arguments belong in an appeal, not a review application.

What this practically means

#

Executive summary

#
This is a Court of Appeal judgment dismissing an appeal against a ruling of the Employment and Labour Relations Court (Nzioki Wa Makau, J) refusing to review its own decision upholding the appellant's dismissal from the National Police Service following a failed integrity vetting. The appellant, a traffic police officer, was dismissed after the National Police Service Commission found he lacked financial integrity, his M-pesa transactions differing from declared income. His review application under regulation 33 of the Vetting Regulations failed, his ELRC petition was dismissed, and his application for review of that judgment under rule 33 of the ELRC (Procedure) Rules 2016 was also dismissed. Before the Court of Appeal, the appellant argued errors apparent on the face of the record, principally that Commissioner Murshid Mohamed signed the vetting decision despite having stepped out of the interview, and Commissioner Johnston Kavuludi signed the review decision without having participated, plus 'other sufficient reasons' including alleged unfair hearing, hearsay evidence and bias. In a single judgment of the court, Warsame, M'inoti and Laibuta, JJA applied the Muyodi v ICDC formulation, holding that an error apparent on the face of the record must be self-evident and not require detailed examination or argument. The questions the appellant raised required re-examination of the Hansard and minutes and were matters fit for appeal, not review. The court found the learned Judge properly exercised his unfettered discretion under rule 33 and declined to interfere, dismissing the appeal with costs. The decision affirms that grounds capable of being argued on appeal cannot ground review under rule 33.

Questions the Court framed

#

The issues the Court set itself to decide, in its own words.

  1. 1.Whether the learned Judge erred in declining to find that the appellant had demonstrated errors on the face of the record sufficient to warrant review
  2. 2.Whether the learned Judge erred in holding that an issue which affords a good ground of appeal does not afford a good ground for review
  3. 3.Whether the appellant had provided sufficient reasons to warrant review of the judgment

Key legal issues

#
01

What constitutes an error apparent on the face of the record under rule 33 of the ELRC (Procedure) Rules 2016

Holding

An error apparent on the face of the record must be self-evident, requiring no detailed examination of evidence, facts or law; a possibly correct view or one requiring argument is not such an error.

Reasoning

The court adopted the classic formulation in Muyodi v ICDC: a mere erroneous decision is distinct from an error apparent on the face of the record, which arises only where an error on a substantial point of law stares one in the face admitting no two opinions. The appellant's claims about panel composition required examining the Hansard, minutes, and probabilities about whether a commissioner who stepped out returned; these are matters for examination and argument on appeal, not self-evident errors reviewable under rule 33.

p. 4
02

Whether the 'any other sufficient reason' limb of rule 33 was satisfied by the grounds of unfair hearing and bias

Holding

No. The grounds required thorough review of the evidence and were fit for appeal; the learned Judge's discretion in refusing review was properly exercised and would not be interfered with.

Reasoning

Rule 33 confers an unfettered discretion on the court regarding what amounts to 'any other sufficient reason'. The court found the Judge had exercised that discretion appropriately, having found the appellant was heard by both panels for substantial periods, and that nothing indicated abridgement of his constitutional rights. Grounds requiring re-evaluation of evidence belong on appeal, not in a review application.

p. 5

Legal principles established

#
  • An error apparent on the face of the record must be self-evident and not require detailed examination or reasoning; issues requiring re-examination of evidence or argument are matters for appeal, not review.
  • Where an issue affords a good ground of appeal, it does not afford a ground for review under rule 33 of the ELRC (Procedure) Rules 2016.

Court orders

#
  1. 1.The appeal lacks merit and is dismissed with costs

The bench

#

One judgment of the whole court — no separate or dissenting opinions.

Mohamed Abdulahi Warsame
M. WarsameJA
Currently serving
majority
majority
majority
On appeal from
Employment and Labour Relations Court
Not stated in the judgment
Jurisdiction invoked
First appeal to the Court of Appeal against a ruling of the Employment and Labour Relations Court dismissing an application for review (Employment and Labour Relations Court (Procedure) Rules 2016, rule 33)

Relief refused

#

Review of the ELRC ruling of 22nd September 2021 / setting aside of the vetting dismissal decision

The matters raised required examination and argument and were fit for appeal, not review; the discretion of the learned Judge was properly exercised

p. 5

Costs

The appeal was dismissed with costs (to the respondent, who though absent, is the successful party).

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.

If an error is not self-evident and requires a detailed explanation or reasoning, then it cannot be treated as an error apparent on the face of the record.
p. 4Error apparent on the face of the record
These examinations are not self-evident and cannot be the subject of a review. They are fit for appeal.
p. 5Review versus appeal
We find that the appeal lacks merit and is hereby dismissed with costs.
p. 5Final orders

Issues in the judgment

#
minor

The judgment states the vetting decision was delivered on 6th December 2012 in one passage and 6th December 2016 in another, an internal inconsistency.

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.

Cite this brief

#

Cite this brief

Caselaw, "Akoko v National Police Service Commission (Civil Appeal 686 of 2021) [2024] KECA 485 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/485/eng@2024-05-09

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.