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ELRCDismissedNot stated in the judgment

Muchiri Kirathe v Teachers Service Commission [2021] KEELRC 2358 (KLR)

Employment and Labour Relations Court
23 March 2021
MMM. Mbaru
1,374 words in judgment
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·~5 min to read original · ~4 min brief

The bottom line

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A Kenyan employment court dismissed both a teacher's request to review its judgment and the TSC's bid to appeal late, showing courts can't reopen their own decisions.

What this practically means

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Executive summary

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This ruling of the Employment and Labour Relations Court at Nairobi, delivered by M. Mbaru J on 23rd March 2021, determined two applications arising from a judgment of 27th October 2020 in an employment dispute between a claimant acting in person and the Teachers Service Commission. The respondent's application dated 15th December 2020, supported by the affidavit of Flora Manyasa, sought extension of time to file and serve a Notice of Appeal, citing her indisposition due to COVID-19 isolation on the delivery date. The claimant's application dated 20th December 2020 sought review or revision of the judgment under Section 16 of the Employment and Labour Relations Court Act, Section 12(3)(v) and (vi) of the Employment and Labour Relations Act, and Article 47(1) of the Constitution, contending that his pleaded claims - salary during wrongful suspension, losses over incomplete postgraduate studies, denied promotion, inability to service a loan, damages for wrongful disciplinary action, and interest - had not been fully awarded. The court framed two issues: whether to extend time for the Notice of Appeal, and whether to review the judgment. It held that having rendered judgment, it is denied further jurisdiction to address any appeal arising from its own decision; an out-of-time Notice of Appeal is a matter for the appellate court. On review, applying Rule 33 of the ELRC (Procedure) Rules, 2016 and the decision in Gerald Kithu Muchanje v Catherine Muthoni Ngare, the court found no new matter, error, need for clarification or sufficient cause; dissatisfaction with findings is a matter for appeal. Both applications were dismissed without merit, with each party bearing their own costs.

Questions the Court framed

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

  1. 1.Whether the court should extend time to file Notice of Appeal out of time
  2. 2.Whether the court should review the judgement herein delivered on 27th October, 2020

Key legal issues

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01

Whether the court should extend time to file Notice of Appeal out of time

Holding

The court declined, holding it lacks jurisdiction to entertain appeals from its own decisions; such applications are for the appellate court.

Reasoning

Section 17 of the Employment and Labour Relations Court Act, 2011 gives a right of appeal. Once this court delivers judgment, the rules governing the appellate court apply, and this court is denied further jurisdiction to address any appeal arising out of its own decision, order or judgment. An out-of-time Notice of Appeal is therefore a matter for the appellate court, not this court.

p. 2
02

Whether the court should review its judgment delivered on 27th October 2020

Holding

The review application failed; no ground under Rule 33 was established.

Reasoning

Rule 33(1) permits review only on discovery of new and important matter, mistake or error apparent on the face of the record, need for clarification, or other sufficient reason. The court found the claimant merely disagreed with the findings and remedies in the judgment, which had addressed all pleaded claims; such dissatisfaction must be pursued by appeal, not review.

p. 3

Legal principles established

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  • Once this Court has delivered judgment, it is functus officio and denied further jurisdiction to address any appeal arising from its own decision; applications for extension of time to appeal lie to the appellate court.
  • Review under Rule 33 requires discovery of new and important matter, an error apparent on the face of the record, need for clarification or other sufficient reason; dissatisfaction with findings is not a ground for review but for appeal.
  • A party wishing to challenge the merits of an order should pursue an appeal, while review must be framed pursuant to Rule 33.

Court orders

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  1. 1.The respondent's application dated 15th December 2020 seeking extension of time to file Notice of Appeal is dismissed
  2. 2.The claimant's application dated 20th December 2020 seeking review/revision of the judgment of 27th October 2020 is dismissed
  3. 3.Each party shall bear their own costs

The bench

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

MM
majority

Wrote the judgment

Jurisdiction invoked
Section 16 and Section 17 of the Employment and Labour Relations Court Act, 2011; Rule 33 of the Employment and Labour Relations Court (Procedure) Rules, 2016

Relief refused

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Extension of time to file and serve a Notice of Appeal out of time (respondent's application)

The court rendered judgment and lacks jurisdiction over appeals from its own decisions; the appellate court should deal with any out-of-time Notice of Appeal

p. 2

Review/revision of the judgment of 27th October 2020 (claimant's application)

No new matter, error apparent on the record, need for clarification or sufficient cause under Rule 33 was established; dissatisfaction with findings is a matter for appeal, not review

p. 3

Costs

Each party shall bear their own costs

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.

this court is denied further jurisdiction to address any appeal arising out of own decision, order or judgement.
p. 2Functus officio / jurisdiction over appeals from own decisions
Where the claimant was dissatisfied with the findings of the court, a review is not the way to go as such a review is regulated under section 16 of the Employment and Labour Relations Court Act, 2011 and Rule 33 of the Court Rules.
p. 3Distinction between appeal and review
where a party wishes to challenge the merits of an order, an appeal should suffice while a review ought to be framed pursuant to Rule 33 as set out above and as held in Gerald Kithu Muchanje v Catherine Muthoni Ngare & another [2020] eKLR.
p. 3Proper avenue for challenging merits of an order
Accordingly, applications dated 15th December 2020 filed by the respondent and application dated 20 th December, 2020 by the claimant are hereby found without merit and dismissed. each party shall bear own costs.
p. 3Final orders and costs

Issues in the judgment

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minor

The claimant's review application is described as dated 20th December, 2020 in one passage and 20th December, 2021 in another, an internal inconsistency in dates.

minor

The respondent's affidavit refers to inability to 'attend and file' the Notice of Appeal, apparently omitting the word 'not', creating an ambiguity in the ground for extension of time.

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, "Muchiri Kirathe v Teachers Service Commission [2021] KEELRC 2358 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/2358/eng@2021-03-23

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