Paul Misori Orago v City Council of Nairobi [2017] KECA 645 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed a worker lost his appeal because he filed it months late and wrongly tried to use review instead.
What this practically means
#Executive summary
#Key legal issues
#Whether the appeal against the judgment of 8th November 2013 was competent
It was incurably incompetent, having been lodged far outside the 14-day period in rule 75(2) of the Court of Appeal Rules, with no extension of time sought or granted.
The notice of appeal was lodged on 7th August 2014 against a decision delivered on 8th November 2013. Rule 75(2) requires lodgment within 14 days; the remedy is an application under Rule 4 for extension of time, which the appellant never made. Citing Salat v IEBC, the court held that where time prescribed by law lapses, extension must first be sought.
Whether a party who has pursued review of a judgment may appeal against that same judgment
No. Appeals and reviews are separate and distinct vehicles; once a judgment has been reviewed, the right of appeal against the judgment itself is extinguished or spent.
Relying on Pancras T. Swai v Kenya Breweries Ltd and Abasi Belinda v Fredrick Kangwamu, the court held that an erroneous view of evidence or law is a ground of appeal, not review. A party unhappy with the outcome of a review must appeal against the ruling on review, as recognised in Ryce Motors Limited v Jonathan Kiprono Ruto & Another.
Whether one notice of appeal impugning two decisions is fatally defective
No. Under Article 159 of the Constitution and Sections 3A and 3B of the Appellate Jurisdiction Act, the court prioritises substantive justice over technicalities and allowed the timely appeal against the ruling on review to proceed on its merits.
Following Trans-Nzoia Investment Company Limited v Joseph Wanambis, the court held that impugning two decisions in one notice is curable. The court distinguished Republic v Managing Director Kenya Posts & Telecommunications Corporation, where a defect going to jurisdiction required striking out the entire appeal; here the defect was curable and the appeal against the review ruling was lodged on time.
Whether the Judge erred in dismissing the application for review
No. The appellant satisfied none of the grounds in Rule 32 of the Industrial Court (Procedure) Rules, 2010; he was impermissibly asking the Judge to sit on his own appeal, and review is discretionary, to be exercised within the parameters of Mbogo v Shah.
The appellant's real complaint was that the Judge should have reinstated him and recomputed dues under the new CBA - matters amounting to alleged errors of law, which are grounds of appeal, not review. Nothing showed the Judge's discretion was injudicious; he thoroughly considered the application before dismissing it.
Legal principles established
#- Appeals and reviews are separate and distinct vehicles; a party who has unsuccessfully pursued review of a judgment cannot appeal against that same judgment - the recourse is an appeal against the ruling on review, and the right of appeal against the reviewed judgment is extinguished.
- An error of law is a ground of appeal, not a ground for review; allowing review on grounds of legal error would expose decisions to attack in courts that are functus officio.
- A single notice of appeal impugning two distinct decisions in the same proceedings is not a fatal defect; under the overriding objective (Article 159 of the Constitution and Sections 3A and 3B of the Appellate Jurisdiction Act) the court may allow the competent part of the appeal to proceed.
- An appeal to the Court of Appeal must be lodged within 14 days of the decision appealed against; failure to lodge in time or seek extension renders the appeal incurably defective.
Court orders
#- 1.The appeal against the judgment and decree delivered on 8th November 2013 was found incurably incompetent and liable to be struck out
- 2.The appeal against the ruling on the application for review was dismissed on its merits
- 3.No order as to costs
- On appeal from
- Industrial Court of Kenya at Nairobi (now the Employment and Labour Relations Court)
- IND.C.C. No. 1012 of 2010
- Jurisdiction invoked
- Appellate jurisdiction under the Appellate Jurisdiction Act (Sections 3A and 3B invoked); Court of Appeal Rules rule 75(2) and Rule 4 considered
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Paul Misori Orago v City Council of Nairobi [2017] KECA 645 (KLR)", Case Analysis (2017). Civil Appeal No. 307 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/645/eng@2017-03-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.