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Court of AppealDismissedCivil Appeal No 319 of 2017· [2020] KECA 945 (KLR)

CSL v CASN

Court of Appeal
24 January 2020
ANA. N. NambuyeWKW. KaranjaSKS. ole Kantai
3,607 words in judgment
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The bottom line

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Kenya's Court of Appeal upheld a Kshs. 1 million sexual harassment damages award, confirming courts can correct their own innocent mistakes through review.

What this practically means

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Executive summary

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The respondent, formerly employed by the appellant as an LPO/Receiving clerk, was summarily dismissed in July 2015 after raising a complaint of sexual harassment against a staff member. The ELRC (Wasilwa, J.) found the dismissal unfair, awarded terminal dues and 12 months' compensation totalling Kshs. 422,726.85, found the appellant guilty of failing to have a sexual harassment policy, and later fined the respondent's director Kshs. 30,000 with a direction to adopt a policy within 60 days. The employee then successfully applied for review under Rule 32 of the Industrial Court (Procedure) Rules, 2010, and was awarded Kshs. 1,000,000 as damages for sexual harassment, a relief specifically pleaded but omitted from the original judgment. The employer appealed, contending the review application failed the Rule 32 threshold, that the trial court had become functus officio and was in effect sitting on appeal against itself, and that the award was inordinately high. The Court of Appeal, applying Mbogo v Shah, held that the trial Judge properly exercised her review discretion: the sexual harassment claim had been pleaded, canvassed and determined, and the omission of damages under that head was an innocent mistake amounting to an error apparent on the face of the record. The court was not functus officio because it did not re-try issues or determine unpleaded matters. The quantum was also upheld. The appeal was dismissed with costs to the respondent.

Key legal issues

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01

Exercise of discretion to review a judgment under Rule 32 of the Industrial Court (Procedure) Rules, 2010

Holding

The trial Judge properly exercised her discretion; failure to award damages for a pleaded, canvassed and determined claim of sexual harassment was an innocent mistake qualifying as an error apparent on the face of the record

Reasoning

The sexual harassment claim was specifically pleaded, both parties submitted on it, and the trial court made findings on it, yet omitted damages under that head. Such an omission is inadvertent and constitutes an error on the face of the judgment, a valid ground for review under Rule 32(1)(b). Failure to determine pleaded allegations of sexual harassment would occasion a miscarriage of justice.

p. 4
02

Functus officio

Holding

The trial court was not functus officio in the relevant sense because it did not re-try issues or determine unpleaded matters; it merely rectified an acknowledged innocent mistake

Reasoning

The functus officio rule bars a court from revisiting its judgment on merits save as provided by law. Here the Judge did not re-open or re-try the sexual harassment issue; she had already made findings on it. Rectifying an acknowledged innocent mistake by completing the remedies was within the review jurisdiction under Rule 32.

p. 5
03

Quantum of damages for sexual harassment

Holding

The award of Kshs. 1,000,000 was not excessive; the first appellate court was not persuaded to interfere

Reasoning

As a first appellate court, the Court reconsidered the circumstances leading to the sexual harassment claim and the award. It found no basis to conclude that the Kshs. 1,000,000 awarded by the trial Judge was excessive, and declined to disturb it.

p. 5

Legal principles established

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  • A Court of Appeal will not interfere with a trial Judge's exercise of discretion unless the judge misdirected himself or was clearly wrong, resulting in a wrong decision or miscarriage of justice
  • A court that has passed judgment becomes functus officio and cannot revisit the judgment on merits save as provided by law
  • Review must not be an appeal in disguise; it lies only on the grounds fixed by law and is meant to address a new matter, a mistake on the record, or other sufficient reason

Court orders

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  1. 1.Appeal dismissed
  2. 2.Costs of the appeal awarded to the respondent

Authorities

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Legislation

  • Employment ActSection 6
  • Employment ActSection 6(2)
  • Employment ActSection 41
  • Employment ActSection 45(1)
  • Employment ActSection 88
  • Industrial Court (Procedure) Rules, 2010Rule 32
  • Industrial Court (Procedure) Rules, 2010Rule 32(1)

Cases cited (7)

  • Wanjiru Gikonyo & 2 Others v. National Assembly of Kenya
    Nairobi HCCC Pet No. 453/2015

    Definition of mistake or error on the face of the record as an error on a substantial point of law, apparent and unambiguous

  • South African Transport and Allied Workers Union Obo TB Mbatha & 52 Others v. Transnet Limited t/a Transnet Capital Projects & 3 Others
    [2014] ZALCJHB 443

    Once a court pronounces its judgment it becomes functus officio and cannot alter or review its own decision

  • Peterson Ndung'u & 5 Others v. the Kenya Power and Lighting Company Ltd
    Civil Appeal No. 208 of 2015

    Mistake on the part of the court as a valid ground for review

  • Raila Odinga & 2 Others v. Independent Electoral & Boundaries Commission & 3 Others
    2013 [eKLR]

    Discussion of the principle of functus officio

  • Mbogo v Shah
    1968 EA 93

    Appellate court should not interfere with a trial judge's exercise of discretion unless misdirection or clear wrongness is shown

  • Nduhiu Gitahi v. Waruguongo
    [1988] KLR 621

    Court exercising review discretion must correct weighty and unmistakable errors to meet the ends of justice

  • Menginya Salim Murgani v. Kenya Revenue Authority
    Civil Application No. 4 of 2014

    A court after passing judgment becomes functus officio and cannot revisit the judgment on merits save as provided by law

On appeal from
Employment and Labour Relations Court of Kenya at Nairobi
E.L.R.C. Cause No. 1443 of 2015
Jurisdiction invoked
First appellate jurisdiction over the ELRC (appeal against ruling and order of the Employment and Labour Relations Court)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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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, "CSL v CASN", Case Analysis (2020). Civil Appeal No 319 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/945/eng@2020-01-24

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