Samson Makubo Marigo v The Permanent Secretaty Ministry of Internal Security & 2 others
The bottom line
#Kenya's Court of Appeal ruled that judges cannot end a case on a mention date without giving reasons or hearing both sides.
What this practically means
#Executive summary
#Key legal issues
#Whether the ELRC judge's unreasoned jurisdictional order could stand
The order could not stand because the judge gave no reasons for it and it was made suo motu on a mention date without hearing the parties.
The court found that the ELRC judge made the order on 14th March 2016 when the matter was listed for mention, giving no reasons and without referring to the Retirement Benefits Act provisions relied on by the respondent. The court could not second-guess the basis of the order. A good judgment or dispositive order must tell the losing party why he lost, so the court had no option but to set it aside and remit the dispute for a fresh hearing.
Whether dispositive orders may be issued on a mention date
Final and dispositive orders should not issue on a mention date, and issuing such orders suo motu without the parties' input is erroneous.
The court noted that when the impugned order was issued the matter had merely been listed for mention, at which the claimant's counsel only sought another mention date. The judge nonetheless issued a final jurisdictional order on her own motion without hearing the parties. Such final and dispositive orders made on a mention date were held to be erroneous and liable to be set aside.
Duty of a first appellate court
As a first appeal, the Court of Appeal must analyse and re-assess the evidence on record and reach its own conclusions.
The court invoked the settled principles in Selle v Associated Motor Boat Co. that an appeal from the High Court (by analogy the first appellate court) is by way of retrial: the appellate court must reconsider the evidence, evaluate it itself and draw its own conclusions, while making due allowance for the fact that it did not see or hear the witnesses and is not bound by the trial judge's findings of fact.
Legal principles established
#- An order, ruling or judgment of a court must give reasons for the decision; a dispositive order must tell the losing party why he lost
- No substantive or dispositive orders should be issued on a mention date, and final orders should not be made suo motu without hearing the parties
Court orders
#- 1.The orders made by the ELRC judge on 14th March 2016 are set aside
- 2.The matter is remitted to the ELRC to be heard de novo by any other ELRC judge other than Maureen Onyango J
- 3.The appellant is awarded the costs of the appeal
- On appeal from
- Employment and Labour Relations Court at Kisumu
- Kisumu ELRC Cause No. 94 of 2015
- Jurisdiction invoked
- First appellate jurisdiction under the Court of Appeal Rules, the judgment being delivered pursuant to rule 32(3) of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Samson Makubo Marigo v The Permanent Secretaty Ministry of Internal Security & 2 others", Case Analysis (2020). Civil Appeal No. 114 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/578/eng@2020-06-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.