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ELRCOtherNot stated in judgment· [2021] KEELRC 691 (KLR)

Grace Otieno v Salaries and Remuneration Commisison [2021] KEELRC 691 (KLR)

Employment and Labour Relations Court
14 October 2021
MMM. Mbaru
929 words in judgment
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The bottom line

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A Kenyan employment court ruled that once you appeal a judgment, you lose the right to ask the same court to review it.

What this practically means

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Executive summary

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The claimant, who had obtained judgment on 17th February, 2017 awarding notice pay, leave days, compensation and costs but no interest, filed an application dated 2nd August, 2021 seeking review of that judgment to include interest accrued on the award. The respondent filed a Notice of Preliminary Objection dated 10th September, 2021 contending that the claimant's right of review was extinguished upon filing a Notice of Appeal and the subsequent hearing and dismissal of Civil Appeal No. 418 of 2017, in which ground 5 had challenged the denial of interest on the damages awarded. The respondent argued the court was functus officio and lacked jurisdiction, and that the application invited the court to review the judgment of the Court of Appeal. The claimant maintained she was entitled to interest as a successful litigant who had waited years for payment. The court, M. Mbaru J, held that the right of review under section 16 of the Employment and Labour Relations Act, 2011 and Rule 33 of the ELRC (Procedure) Rules, 2016 is lost once an appeal is filed; relying on William Karani & 47 others v Wamalwa Kijana and African Airlines International Limited v Eastern & Southern Africa Trade Bank Limited, all complaints ought to have been raised in the appeal. Having rendered itself with finality after the appeal, the court stood functus officio. The preliminary objection was allowed with each party bearing their own costs.

Key legal issues

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01

Whether the court has jurisdiction to review its own judgment after the aggrieved party filed and pursued an appeal to the Court of Appeal

Holding

The court lacks jurisdiction; upon filing the appeal the right of review was lost and the court became functus officio. The preliminary objection is allowed.

Reasoning

Rule 33(1) of the ELRC (Procedure) Rules, 2016 permits review only by a person aggrieved by a decree or order from which no appeal is preferred or allowed. The claimant filed an appeal (Civil Appeal No. 418 of 2017) which was heard and dismissed. Citing William Karani and African Airlines International, the court held that once an appeal is taken, review is ousted and the matter merges in the appeal. Filing a review after the appeal would be an abuse of court process.

p. 2

Legal principles established

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  • Once an appeal is taken against a judgment, the right of review is ousted and the court becomes functus officio; all complaints must be raised in the appeal
  • A review application must be filed before the appeal is lodged; once the appeal is heard, the review cannot be proceeded with

Court orders

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  1. 1.The respondent's Notice of Preliminary Objection dated 10th September, 2021 is found with merit and is allowed
  2. 2.Each party shall pay their own costs

Authorities

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Legislation

  • Employment and Labour Relations Act, 2011Section 16
  • Employment and Labour Relations Court (Procedure) Rules, 2016Rule 33(1)

Cases cited (6)

  • Otieno, Ragot & Company Advocates v National Bank of Kenya Limited
    [2020] eKLR
  • Satya Bhama Gandhi v Director of Public Prosecutions & others
    [2018] eKLR
  • Michael Murimi Kamanzi v Jamesons Industries Ltd and Another
  • Jasper Juma Nzuki v James Wanyama Mathuku & another
    HCCC No. 45 of 2002
  • William Karani & 47 others v Wamalwa Kijana & 2 others
    [1987] eKLR
  • African Airlines International Limited v Eastern & Southern Africa Trade Bank Limited
    [2003] 1 EA 1 (CAK)
On appeal from
Court of Appeal
Civil Appeal No. 418 of 2017
Jurisdiction invoked
Section 16 of the Employment and Labour Relations Act, 2011 and Rule 33 of the Employment and Labour Relations Court (Procedure) Rules, 2016

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, "Grace Otieno v Salaries and Remuneration Commisison [2021] KEELRC 691 (KLR)", Case Analysis (2021). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/691/eng@2021-10-14

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