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Court of AppealPartially AllowedCivil Appeal No. 237 of 2012 (arising from HCCC Nos. 216, 219 and 255 of 2007, consolidated)· [2014] KECA 600 (KLR)

Telkom Kenya Ltd v Ochanda (suing on his own behalf and on behalf of 996 former employees of Telkom Kenya Ltd) (Civil Appeal 60 of 2013) [2014] KECA 600 (KLR)

Court of Appeal of Kenya
9 May 2014
EGE. M. GithinjiWKW. KaranjaPKP. O. Kiage
5,564 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Once a Kenyan court delivers final judgment, it cannot reopen the case or delegate damage calculations to parties — dissatisfied parties must appeal.

What this practically means

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Executive summary

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Telkom Kenya Limited appealed against directions issued by Waweru J on 22nd March 2012 in the consolidated suits of John Ochanda and others arising from the retrenchment of its employees in 2006. The learned judge had directed the appellant to file affidavits setting out each plaintiff's years of service, salary and a computation of severance pay, and had allowed the respondents' application of 31st January 2012 seeking amendment or review of Mwera J's judgment of 28th September 2011 to proceed by affidavit. The appellant contended that the High Court was functus officio, that the judge impermissibly re-opened a determined suit, shifted the burden of proof, and delegated the judicial function of computing damages. The respondents, in turn, relied on Article 159(2)(d) of the Constitution and the overriding objective, and argued that a prior decision of this Court in Civil Appeal No. 207 of 2012 had rejected the characterisation of the judgment as in rem. The Court of Appeal allowed the appeal. It held that Mwera J's judgment and decree had been perfected and that the High Court had therefore become functus officio; the judge's directions amounted to an unlawful merit-based re-engagement with a concluded case and an improper attempt to convert a declaratory judgment by admitting post-judgment evidence. Assessment of damages, the Court held, is a purely judicial function that cannot be delegated to parties. Article 159(2)(d) and the overriding objective could not whitewash procedural failings. The orders of Waweru J were set aside in their entirety, with each party bearing its own costs.

Key legal issues

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01

Whether the High Court could direct the filing of further evidence by affidavit after judgment had been entered and the decree perfected

Holding

It could not. The court had become functus officio upon perfection of the judgment and decree; the direction effectively re-opened the trial and attempted to amend the judgment, which was not available to the judge, whose only recourse would have been review.

Reasoning

The Court traced the functus officio doctrine from In re St. Nazaire through Chandler v Alberta Association of Architects and Raila Odinga v IEBC, noting the narrow exceptions for a slip or error in expressing manifest intention. Neither exception applied: there was finality as to proceedings, merits and decision, and grievances could only be escalated on appeal.

p. 7
02

Whether computation of severance entitlements could be delegated to the appellant by way of affidavit

Holding

No. Assessment of damages is a purely judicial function that cannot be delegated to parties; a judgment left incomplete without such assessment would be a nullity. Special damages must also be specifically pleaded and strictly proved.

Reasoning

The Court relied on Kenya Revenue Authority v Menginya Salim Murgani, holding that the award and quantum of damages are judicial functions the superior court cannot delegate, and on Hahn v Singh for the rule that special damages must be specifically pleaded and strictly proved to avoid ambush and surprise, which post-judgment affidavit evidence would invite.

p. 9
03

Whether Article 159(2)(d) and the overriding objective could justify the procedural directions

Holding

No. The constitutional provision is not meant to whitewash every procedural failing or place procedural rules at naught; compliance with rules of procedure serves, not defeats, substantive justice.

Reasoning

The Court rejected reliance on Article 159(2)(d) and the Oxygen Principle, observing that the rules serve as handmaidens of lady Justice. The respondents' failure to disclose the identities of the 996 claimants per Order 1 of the Civil Procedure Rules (rules 1, 8, 10, 14) had spawned much of the complexity dogging the matter.

p. 9
04

Whether the judgment of Mwera J was in rem or in personam, and whether silence in Civil Appeal No. 207 of 2012 amounted to rejection of the in rem argument

Holding

Nothing turns on the distinction. The Court declined to treat non-determination as rejection; the issue was not identified as crucial in the earlier appeal, and this appeal turns on the propriety of re-opening a determined case.

Reasoning

The Court held that an argument captured but not decided in a prior judgment is not thereby rejected; the earlier bench deliberately avoided the distinction. The present appeal turns on the legality of the re-opening of the determined case, which the Court addressed at length.

p. 8

Legal principles established

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  • Once a court has delivered a final judgment and a perfected decree, it becomes functus officio and cannot reopen the merits except for the narrow exceptions of correcting a slip or expressing a manifest intention; grievances must be escalated on appeal.
  • The assessment and computation of damages is a purely judicial function that cannot be delegated to parties or defendants; a judgment requiring parties to compute entitlements by affidavit is a nullity.
  • Article 159(2)(d) of the Constitution and the overriding objective cannot be invoked to justify departure from well-established procedure or to whitewash procedural failings.
  • A court's silence on an argument raised before it cannot be deemed a rejection of that argument.

Court orders

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  1. 1.The appeal is allowed
  2. 2.The orders of Waweru J issued on 22nd March 2012 are set aside in their entirety
  3. 3.Each party to bear their own costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 159(2)(d)
  • Civil Procedure Actsection 99
  • Civil Procedure RulesOrder 1 (rules 1, 8, 10, 14)
  • Civil Procedure RulesOrder 20 (currently Order 21)
  • Civil Procedure RulesOrder 48 (currently Order 49)

Cases cited (9)

  • Raila Odinga & 2 Others v Independent Electoral And Boundaries Commission & 3 Others
    [2013] eKLR
  • Ngugi v Kinyanjui
    [1989] KLR 146
  • Catherine Kanya & 2 Others v Commercial Bank Of Africa
    Civil Application No. 366 of 2009 (unreported)
  • Chandler v Alberta Association Of Architects
    [1989] 2 S.C.R. 848
  • In re St. Nazaire Co.
    (1879), 12 Ch. D. 88
  • Paper Machinery Ltd. v J.O. Rose Engineering Corp.
    [1934] S.C.R. 186
  • Jersey Evening Post Ltd v Al Thani
    [2002] JLR 542
  • Kenya Revenue Authority v Menginya Salim Murgani
    [2010] eKLR
  • Hahn v Singh
    [1985] KLR 716
On appeal from
High Court of Kenya
HCCC Nos. 216, 219 and 255 of 2007 (consolidated), ruling of Waweru J dated 22nd March 2012
Jurisdiction invoked
First appeal to the Court of Appeal against interlocutory orders of the High Court under the Civil Procedure Act framework

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (22)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Telkom Kenya Ltd v Ochanda (suing on his own behalf and on behalf of 996 former employees of Telkom Kenya Ltd) (Civil Appeal 60 of 2013) [2014] KECA 600 (KLR)", Case Analysis (2014). Civil Appeal No. 237 of 2012 (arising from HCCC Nos. 216, 219 and 255 of 2007, consolidated). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/600/eng@2014-05-09

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