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Court of AppealPartially AllowedCivil Appeal No. E656 of 2022 (ruling on Notice of Motion dated 10th June 2026)

National Social Security Fund Board of Trustees v Kenya Tea Growers’ Association & 15 others (Civil Appeal E656 of 2022) [2026] KECA 1213 (KLR)

Court of Appeal of Kenya
26 June 2026
3,323 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal set aside its own mistaken ruling, confirming it can correct clear errors in decisions no one can appeal.

What this practically means

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Executive summary

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This ruling of the Court of Appeal (W. Karanja, K. M'Inoti and P. Nyamweya, JJ.A) determines a Notice of Motion dated 10th June 2026 by the Attorney General seeking to set aside the Court's own ruling delivered on 29th May 2026. That earlier ruling had, in error, determined an application dated 14th October 2022 for stay of execution of an ELRC judgment of 19th September 2022 - an application that had become spent when the Court determined the substantive appeal on 3rd February 2023 (and which the Supreme Court in Petition No. E004 of 2023, decided 21st February 2024, had remitted for determination on the merits). The application that had actually been heard and reserved for ruling - the Union's application dated 23rd September 2024 for joinder as interested party - remained undetermined. The Court found the error apparent on the face of the record and not contested. It applied Benjoh Amalgamated and the Nyamogo & Nyamogo formulation of 'error apparent on the face of the record', holding that the Court retains inherent jurisdiction under section 3A of the Appellate Jurisdiction Act and Rule 1(2) of the Court of Appeal Rules to set aside its own rulings where real injustice or erosion of public confidence warrants it, without sitting on appeal over itself. Emphasising the constitutional imperative that parties be heard before decisions affecting their rights, the Court set aside the ruling of 29th May 2026 in its entirety, set 3rd July 2026 for delivery of the ruling on the joinder application, and made no order as to costs since the error was the Court's own. None of the respondents opposed the application.

Questions the Court framed

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

  1. 1.Whether there was an error apparent on the face of the ruling dated 29th May 2026
  2. 2.Whether the Court had jurisdiction to recall and set aside its own ruling
  3. 3.Whether the ruling delivered on 29th May 2026 was amenable to recall

Key legal issues

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01

Error apparent on the face of the record

Holding

The ruling of 29th May 2026 was delivered on an application (for stay) that was spent and not live, while the heard and reserved joinder application remained undetermined; that is an error apparent on the face of the record and is not contested.

Reasoning

The Court adopted the classic formulation in Nyamogo & Nyamogo vs Kogo as restated in Muyobi vs ICDC: an error apparent on the face of the record is one that stares one in the face and admits of no two opinions, as distinct from a mere erroneous decision requiring long drawn reasoning. Here the record itself showed that the stay application had been overtaken by the judgment of 3rd February 2023, and the ruling was on an application on which parties had not been heard. The error was therefore self-evident.

p. 5
02

Inherent jurisdiction to recall and set aside the Court's own ruling

Holding

The Court has inherent jurisdiction under section 3A of the Appellate Jurisdiction Act and Rule 1(2) of the Court of Appeal Rules to set aside its own rulings in the interests of justice, without sitting on appeal over itself.

Reasoning

Relying on Benjoh Amalgamated, the Court acknowledged that review jurisdiction in the Court of Appeal is not statutorily conferred save for the slip rule, but that a court of final resort possesses residual jurisdiction to reopen decided matters in cases of fraud, bias or other injustice, balancing the finality principle against the justice principle. Because the erroneous ruling determined an application that was not live, and parties had not been heard on it, public confidence in the administration of justice was at stake and recall was warranted.

p. 6
03

Right to be heard before decisions affecting rights

Holding

It is a constitutional imperative that parties be heard before any decision affecting their rights or interests is made; a ruling delivered on an application that was not live violates that imperative and should be set aside.

Reasoning

The Court held that delivering a ruling on an application on which the parties had not been heard undermined the fair hearing guarantee. The undetermined joinder application also impeded the hearing of the remitted appeal on a priority basis as directed by the Supreme Court. Setting aside the erroneous ruling served the interests of justice, clarified the record, and occasioned no prejudice to the respondents, none of whom opposed the application.

p. 6

Legal principles established

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  • The Court of Appeal, not being the final court, has residual jurisdiction to review its own decisions to which there is no appeal, to correct errors of law that have occasioned real injustice or eroded public confidence in the administration of justice, to be exercised cautiously.

Court orders

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  1. 1.The ruling delivered by the Court on 29th May 2026 is set aside in its entirety
  2. 2.Ruling on the application dated 23rd September 2024 (joinder of the Kenya Export Floriculture, Horticulture and Allied Workers Union) to be delivered on 3rd July 2026
  3. 3.No order as to the costs of the application

The bench

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

majority
majority
majority
On appeal from
Employment and Labour Relations Court at Nairobi
ELRC Petition No. 38 of 2014
Jurisdiction invoked
Articles 159(1)(d) and 164(3) of the Constitution; Sections 3(2), 3(3), 3A(1), 3A(2) and 3B of the Appellate Jurisdiction Act; Rules 1(2) and 44 of the Court of Appeal Rules, 2022

Relief refused

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Prayer that Civil Appeal No. E656 of 2022 be fixed for hearing together with any pending applications

Abandoned by the applicant at the hearing in light of the pending ruling on the joinder application dated 23rd September 2024

p. 3

Costs

No order as to costs - each party to bear their own costs of the application ("Given that the instant application arose from an error by the Court, we shall make no order as regards the costs of the application.")

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

We, therefore, find that the ruling erroneously delivered by this Court on 29th May 2026 is amenable to setting aside in the interests of justice, and we accordingly set aside the said ruling in its entirety.
p. 6Final orders - setting aside of the ruling of 29th May 2026
Where an error on a substantial point of law stares one in the face, and there could reasonably be no two opinions, a clear case of error apparent on the face of the record would be made out.
p. 5Definition of error apparent on the face of the record
where the Court is of final resort, and notwithstanding that it has not explicitly been statutorily conferred with the jurisdiction to reopen a decided matter, it has residual jurisdiction to do so in cases of fraud, bias, or other injustice with a view to correct the same
p. 6Residual jurisdiction to reopen decided matters
it is a constitutional imperative that parties should be given the opportunity to be heard before any decision is made afiecting their rights or interests
p. 6Right to be heard
Given that the instant application arose from an error by the Court, we shall make no order as regards the costs of the application.
p. 7Costs of the application

Issues in the judgment

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minor

The judgment inconsistently renders the name of the Mayodi/Muyobi case, referring to it as "Mayodi" when cited by the applicant and "Muyobi" when quoted by the Court, apparently the same authority at [2006] 1 EA 243.

minor

The judgment contains typographical rendering errors ("difierent", "afiecting", "sufier") consistent with an OCR or encoding defect in the copy provided.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "National Social Security Fund Board of Trustees v Kenya Tea Growers’ Association & 15 others (Civil Appeal E656 of 2022) [2026] KECA 1213 (KLR)", Case Analysis (2026). Civil Appeal No. E656 of 2022 (ruling on Notice of Motion dated 10th June 2026). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1213/eng@2026-06-26

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