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Court of AppealPartially AllowedCivil Appeal No 89 of 2018· [2023] KECA 601 (KLR)

Onyango v Maseno West Sacco Society (Civil Appeal 89 of 2018) [2023] KECA 601 (KLR)

Court of Appeal of Kenya
26 May 2023
1,426 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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This was an appeal to the Court of Appeal at Kisumu against the judgment of MN Nduma J of the Employment and Labour Relations Court dated June 6, 2018, dismissing the appellant's claim for unlawful termination of employment. The background was unusual: the appellant's claim of summary dismissal had already been determined by M Onyango J on June 8, 2017, but that judgment contained apparent errors - it declared the appellant 'unfairly suspended' and ordered his reinstatement as Chief Executive Officer of Lake Victoria North Water Services Board, a position he did not hold in an entity he did not work for. The appellant filed an unopposed application for review under Rule 32 of the Industrial Court (Procedures) Rules. Instead of ruling on that review application, Nduma J rendered a fresh judgment on the underlying claim, applying sections 43, 44(1), 44(3) and 47(5) of the Employment Act, and dismissed it. The Court of Appeal, in a unanimous judgment delivered by Mumbi Ngugi, JA, with Kiage and Tuiyott JJA concurring, allowed the appeal. It held that a judge of concurrent jurisdiction has no power to sit on appeal over, or implicitly set aside, the judgment of a fellow judge; that power belongs to appellate courts alone. The Court set aside Nduma J's judgment and remitted the matter to the ELRC for hearing of the review application before any judge other than M Onyango and Nduma JJ, making no order as to costs since the appeal was necessitated by errors of the court below.

Key legal issues

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01

Whether a judge may sit in appeal over the decision of a judge of concurrent jurisdiction

Holding

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.

Reasoning

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.

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02

Whether the ELRC judge was obliged to determine the application for review before him

Holding

Yes. Having seised of the unopposed review application, Nduma J erred in ignoring it and determining the claim afresh.

Reasoning

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.

p. 3
03

The appropriate remedy

Holding

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.

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.Appeal allowed
  2. 2.Judgment of Nduma J dated June 6, 2018 set aside
  3. 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. 4.No order as to costs

Authorities

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Legislation

  • Employment Actsection 43
  • Employment Actsection 44(1)
  • Employment Actsection 44(3)
  • Employment Actsection 47(5)
  • Employment Act 2007Not specified (referred to generally as Employment Act 2007)
  • Industrial Court (Procedures) RulesRule 32

Cases cited (2)

  • Stephen Mwaura Njuguna v Dougals Kamau Ngotho & Another
    [2012] eKLR
  • Joseph Ndirangu Waweru t/a Mooreland Mercantile Co & another v City Council of Nairobi
    [2015] eKLR
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

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Practical implications

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Frequently asked questions

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Cite this brief

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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.