Kaudo v Speaker, County Assembly of Homa Bay & 6 others (Civil Appeal E295 of 2022) [2024] KECA 1679 (KLR)
The bottom line
#Kenya's Court of Appeal sent the Homa Bay Clerk's removal case back to the Employment Court, allowing only the question of whether his suspension and removal were lawful.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether upon the case being remitted to the ELRC for re-hearing, the issue of the appellant's appointment as Clerk of the County Assembly was still live for the learned judge to make a holding on it
- 2.Whether the appellant was lawfully suspended and removed from office
- 3.Whether the learned Judge was correct in declining to make a finding on the legality or otherwise of the appointment of the 7th respondent as the Clerk of the County Assembly
Key legal issues
#Res judicata/stare decisis as to the validity of the appellant's appointment
The learned Judge on remand erred by re-opening the validity of the appellant's appointment, which had been settled by the Court's earlier judgment; the only live question was the lawfulness of the suspension and removal.
The lead judgment of Kiage, JA in Civil Appeal No. E036 of 2021 set aside the earlier ELRC judgment on the basis that there was no lawful reason for invalidating the appointment, and remitted the matter for determination of the suspension and removal. Those directions bound the Judge on remand. Re-opening the appointment question and declining the remitted issue was a reversible error.
Appellate court's reluctance to make first-instance findings
Since the Judge made no findings on the lawfulness of the suspension and removal, the Court of Appeal would not determine that question for the first time on appeal; the case is remitted again.
The Court emphasized the policy of allowing trial courts to develop the record and give reasoned findings in the first instance so parties get the full benefit of appellate review. Making the finding itself would deprive the parties of two levels of adjudication on that question.
Declining to determine the appointment of the 7th respondent
The Judge was correct in declining to make findings on the 7th respondent's appointment, as it is the subject of other pending suits and the consolidation application was refused and not appealed.
At least two other suits squarely challenge the 7th respondent's appointment. The appellant sought consolidation, was refused by a ruling of 21st June 2022, and did not appeal that ruling; he cannot subsume consolidation arguments in this appeal. That aspect fails and will not be re-tried on remand.
Legal principles established
#- Directions in a prior judgment of the Court of Appeal on remand bind the trial court seized of the matter on remand; the trial court may not re-open questions that the appellate court's holding forecloses.
- Where the remitted question was not determined by the trial court, the appellate court will remit the matter again rather than make first-instance findings.
Court orders
#- 1.The appeal partly succeeds
- 2.The case is remitted back to the trial court (ELRC) for rehearing on the limited question of whether the suspension and removal of the appellant as Clerk was lawful and, if not, what reliefs he is entitled to
- 3.The aspect of the appeal concerning the appointment of the 7th respondent is dismissed and will not be re-tried upon remand
- 4.Each party will bear its own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Employment and Labour Relations Court
- Kisumu ELRC Petition No. 27 of 2020 as consolidated with Petition No. 32 of 2020
- Jurisdiction invoked
- First appellate jurisdiction of the Court of Appeal over the Employment and Labour Relations Court
- Consolidated with
- Kisumu ELRC Petition No. 32 of 2020
Relief refused
#Challenge to the appointment of the 7th respondent as Clerk
The issue is the subject of other pending suits; the Judge correctly declined to determine it, and the appellant did not appeal the refusal to consolidate
Costs
Each party will bear its own costs
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
However, the only aspect of the case remitted for rehearing is a determination whether the suspension and removal of the appellant as the Clerk of the County Assembly of Homabay was lawful; and if not, what reliefs he is entitled to.
In view of the outcome of this appeal, each party will bear its own costs.
They are binding on the learned Judge.
In our view, this is a reversible error.
This aspect of the case will not be re-tried upon remand.
Issues in the judgment
#Judgment cites 'Kenya Power and Lighting Company vs. Benzene Holdings Limited t/a Wyco Paints [2026] eKLR', a date later than the judgment (2024), which appears to be a typographical error in the judgment.
Internal numbering of paragraphs restarts mid-judgment (paragraphs 15-25 appear twice), suggesting an editing/clerical error.
The judgment refers to pending suits inconsistently as 'Kisumu Petition No. E10 of 2020 and Kisumu ELRC No. E08 of 2022' in one passage but 'petition numbers E010 of 2022 and E08 of 2022' in the quoted judgment of the trial court, with differing years.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kaudo v Speaker, County Assembly of Homa Bay & 6 others (Civil Appeal E295 of 2022) [2024] KECA 1679 (KLR)", Case Analysis (2024). Appeal from Kisumu ELRC Petition No. 27 of 2020 as consolidated with Petition No. 32 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1679/eng@2024-11-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.