Onyango v Maseno West Sacco Society (Civil Appeal 89 of 2018) [2023] KECA 601 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that an ELRC judge cannot re-decide a claim already determined by a fellow judge; the fresh judgment was set aside.
What this practically means
#Executive summary
#Key legal issues
#Whether a judge may sit in appeal over the decision of a judge of concurrent jurisdiction
He may not. By rendering a fresh judgment on a claim already determined by M Onyango J, Nduma J implicitly set aside her decision, effectively sitting on appeal on it, which is beyond the jurisdiction of a court of concurrent jurisdiction.
The appellant's claim had already been determined by M Onyango J on June 8, 2017, albeit with apparent errors (addressing suspension instead of dismissal, reinstating him to a position he did not hold). The proper course was the review application under Rule 32. Instead, Nduma J rendered a second judgment dismissing the claim, which amounted to an appellate interference with a decision of a judge of the same court, a power reserved to appellate courts.
Whether the ELRC judge was obliged to determine the application for review before him
Yes. Having seised of the unopposed review application, Nduma J erred in ignoring it and determining the claim afresh.
It was proper for Nduma J to hear the review application since M Onyango J appeared no longer to be in the station. However, the record shows the ELRC did not consider the review application at all, instead rendering judgment on the underlying claim. That was an error rendering his judgment a nullity for the purposes of the appeal.
The appropriate remedy
The appeal was allowed, the second judgment set aside, and the review application remitted to the ELRC for hearing before a judge other than M Onyango and Nduma JJ, with no order as to costs.
Although the appellant asked the Court to grant the substantive prayers in his claim (unpaid salaries, shares, notice pay and costs), the Court held that justice was better served by remitting the matter so the ELRC could properly consider the review application. Costs were not awarded against the respondent because the appeal arose from errors of the court below.
Legal principles established
#- A judge of concurrent jurisdiction has no power to sit on appeal over, or set aside or vary, the judgment of a fellow judge of the same court; only an appellate court may do so.
- Where an application for review of a judgment is pending before an ELRC judge, that judge must determine the review application and cannot render a fresh judgment on the claim already determined.
Court orders
#- 1.Appeal allowed
- 2.Judgment of Nduma J dated June 6, 2018 set aside
- 3.The appellant's claim placed before the ELRC for hearing of the application for review dated February 28, 2018 before any judge other than M Onyango and Nduma JJ
- 4.No order as to costs
- On appeal from
- Employment and Labour Relations Court, Kisumu
- Not stated in the judgment
- Jurisdiction invoked
- First appellate jurisdiction over the ELRC (statutory appeal; specific provision not cited in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Onyango v Maseno West Sacco Society (Civil Appeal 89 of 2018) [2023] KECA 601 (KLR)", Case Analysis (2023). Civil Appeal No 89 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/601/eng@2023-05-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.