Sarah Wahu Njoroge & 88 others v Retirement Benefits Appeals Tribunal & 2 others [2017] KECA 198 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that once a tribunal delivers a final decision it cannot reopen the matter, and late appeals won't be saved by Article 159(2)(d).
What this practically means
#Executive summary
#Key legal issues
#Functus officio of the Retirement Benefits Appeals Tribunal
The Tribunal's decision of 28th September, 2012 allowing the appeal and remitting the matter to the Authority was a final decision; the Tribunal thereby became functus officio
The court agreed with Korir, J. that a bystander reading the proceedings would conclude the appeal was heard, allowed, the RBA decision set aside and the matter referred for fresh hearing. Once final judgment is delivered, the decision-maker cannot re-open the matter except under the slip rule, and the letter of 20th November, 2012 confirmed the matter had been referred for hearing and determination.
Merger of the unnumbered 2014 appeal with the concluded Appeal No. 1 of 2012
The Tribunal acted wrongfully in merging the unnumbered appeal with the already determined appeal
Having become functus officio, the Tribunal had no jurisdiction to revive or merge the concluded appeal with a later memorandum of appeal filed out of time; doing so arrogated to itself a power it did not have.
Scope of section 49 of the Retirement Benefits Act
Section 49 confers powers to summon witnesses, take evidence and call for documents, not to direct reconsideration; the direction to the Authority to reconsider was outside its ambit
The court set out section 49 in full and concluded that the powers conferred relate to taking evidence on appeal, not to ordering reconsideration of a matter by the Authority; accordingly the direction to reconsider exceeded the Tribunal's powers.
Article 159(2)(d) and procedural technicalities
The late-filed 2014 appeal could not be saved by Article 159(2)(d); the provision does not override procedural rules
The 2014 appeal was filed outside the 30-day period prescribed by section 49(1) of the Retirement Benefits Act. Relying on Telkom Kenya v John Ochanda, the court held that compliance with procedural rules is not antithetical to substantive justice.
Legal principles established
#- Once a tribunal or court delivers a final decision on the merits it becomes functus officio and cannot revive, reconsider or merge into the concluded matter a later appeal, save for the limited slip rule
- The fixing of a mention date cannot convert a determined appeal into an undetermined one; a mention date reflects only supervisory powers to ensure orders are acted upon
- Article 159(2)(d) of the Constitution does not whitewash procedural failings or place procedural rules at naught
- Section 49 of the Retirement Benefits Act confers on the Tribunal only the powers to summon witnesses, take evidence and call for production of documents, and does not extend to directing reconsideration by the Authority
Court orders
#- 1.The appeal is dismissed
- 2.Costs awarded to the respondents
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C. JR. No. 110 of 2015
- Jurisdiction invoked
- First appeal to the Court of Appeal against a High Court judicial review judgment (statutory right of appeal); no constitutional or statutory provision expressly quoted
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, "Sarah Wahu Njoroge & 88 others v Retirement Benefits Appeals Tribunal & 2 others [2017] KECA 198 (KLR)", Case Analysis (2017). Civil Appeal No. 162 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/198/eng@2017-10-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.