George Nyakundi Ombaba v Attorney General [2017] KECA 511 (KLR)
The bottom line
#Kenya's Court of Appeal threw out an employment award because the judge illegally delegated damage assessment to a registrar and later rewrote her own judgment.
What this practically means
#Executive summary
#Key legal issues
#Functus officio and the purported assessment Ruling
The trial Judge acted without legal basis in purporting, two years after judgment, to review and substitute her own judgment under the guise of assessing damages; the subsequent Ruling was a nullity set aside ex debito justitiae
The Judge had rendered a final judgment on 2nd October 2009 awarding arrears of salary to be assessed. In the 16th June 2011 'Assessment' she did not merely quantify damages but revisited, upset and replaced the earlier judgment, reducing the award drastically. The Court held that a judge cannot sit on appeal on her own judgment without being moved, and that this conduct was preposterous and incurably defective.
Delegation of assessment of damages to the Deputy Registrar
The original judgment was itself defective because it remitted computation of damages to the Registrar or Deputy Registrar; assessment of damages is a judicial function that cannot be delegated
The Court relied on its prior decision in Kenya Revenue Authority v Merginya Salim Murgani, which held that quantum of damages is judicial and a judgment must be complete and conclusive when pronounced, and could not be perfected by a Deputy Registrar. The trial Judge's direction to assess, taking into account the applicable time of service, left the Deputy Registrar to determine not just amounts but the period of service, an impermissible delegation.
Severability of judgment No. 1 and the assessment Ruling
The two decisions were inseparable; the defect in the assessment infected and destroyed the earlier judgment
The respondent had itself filed a notice of appeal against judgment No. 1 and later admitted in submissions that the judgment on dismissal was a nullity, and neither party supported the impugned judgment. Because the assessment went beyond quantification and reviewed the judgment, the Court found the two could not be severed, so setting aside the assessment necessarily brought down judgment No. 1, requiring a fresh hearing.
Destination of the retrial
The matter was remitted to the Employment and Labour Relations Court because that court now has exclusive jurisdiction over labour and employment matters, which the High Court no longer has
Having nullified the entire High Court judgment, the Court had to decide where the dispute should be reheard. Since the dispute concerned dismissal from public service, it fell within the exclusive jurisdiction of the ELRC, so the High Court from which the matter emanated could not rehear it. The Court declined to re-evaluate the evidence under Rule 29(1) because any findings would embarrass the court that would ultimately rehear the matter.
Legal principles established
#- Assessment or computation of damages is a judicial function of the superior court and cannot be delegated to a Deputy Registrar; a judgment remitted for such assessment is incomplete and a nullity
- A judge becomes functus officio upon delivering judgment and cannot, without a proper application, revisit the judgment, set aside the earlier orders and substitute others
- A judgment and a subsequent purported assessment of damages arising from it cannot be severed; a nullity in one part destroys the whole
Court orders
#- 1.The appeal is allowed
- 2.The entire judgment of the High Court (including the assessment Ruling) is declared a nullity and set aside
- 3.The matter is remitted to the Employment and Labour Relations Court for hearing and determination
- 4.Each party bears its own costs of the appeal
- On appeal from
- High Court of Kenya at Nairobi
- HCCC No. 4 of 2008
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal Rules (Rule 29(1) re-evaluation duty); appeal from High Court in an employment dispute
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "George Nyakundi Ombaba v Attorney General [2017] KECA 511 (KLR)", Case Analysis (2017). Civil Appeal No. 231 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/511/eng@2017-06-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.