National Social Security Fund Board of Trustees v Kenya Tea Growers’ Association & 8 others
The bottom line
#Kenya's Court of Appeal set aside its own mistaken ruling, confirming it can correct clear errors in decisions no one can appeal.
What this practically means
#Executive summary
#Key legal issues
#Error apparent on the face of the record
The ruling of 29th May 2026 was delivered on an application (for stay) that was spent and not live, while the heard and reserved joinder application remained undetermined; that is an error apparent on the face of the record and is not contested.
The Court adopted the classic formulation in Nyamogo & Nyamogo vs Kogo as restated in Muyobi vs ICDC: an error apparent on the face of the record is one that stares one in the face and admits of no two opinions, as distinct from a mere erroneous decision requiring long drawn reasoning. Here the record itself showed that the stay application had been overtaken by the judgment of 3rd February 2023, and the ruling was on an application on which parties had not been heard. The error was therefore self-evident.
Inherent jurisdiction to recall and set aside the Court's own ruling
The Court has inherent jurisdiction under section 3A of the Appellate Jurisdiction Act and Rule 1(2) of the Court of Appeal Rules to set aside its own rulings in the interests of justice, without sitting on appeal over itself.
Relying on Benjoh Amalgamated, the Court acknowledged that review jurisdiction in the Court of Appeal is not statutorily conferred save for the slip rule, but that a court of final resort possesses residual jurisdiction to reopen decided matters in cases of fraud, bias or other injustice, balancing the finality principle against the justice principle. Because the erroneous ruling determined an application that was not live, and parties had not been heard on it, public confidence in the administration of justice was at stake and recall was warranted.
Right to be heard before decisions affecting rights
It is a constitutional imperative that parties be heard before any decision affecting their rights or interests is made; a ruling delivered on an application that was not live violates that imperative and should be set aside.
The Court held that delivering a ruling on an application on which the parties had not been heard undermined the fair hearing guarantee. The undetermined joinder application also impeded the hearing of the remitted appeal on a priority basis as directed by the Supreme Court. Setting aside the erroneous ruling served the interests of justice, clarified the record, and occasioned no prejudice to the respondents, none of whom opposed the application.
Legal principles established
#- The Court of Appeal, not being the final court, has residual jurisdiction to review its own decisions to which there is no appeal, to correct errors of law that have occasioned real injustice or eroded public confidence in the administration of justice, to be exercised cautiously.
Court orders
#- 1.The ruling delivered by the Court on 29th May 2026 is set aside in its entirety
- 2.Ruling on the application dated 23rd September 2024 (joinder of the Kenya Export Floriculture, Horticulture and Allied Workers Union) to be delivered on 3rd July 2026
- 3.No order as to the costs of the application
- On appeal from
- Employment and Labour Relations Court at Nairobi
- ELRC Petition No. 38 of 2014
- Jurisdiction invoked
- Articles 159(1)(d) and 164(3) of the Constitution; Sections 3(2), 3(3), 3A(1), 3A(2) and 3B of the Appellate Jurisdiction Act; Rules 1(2) and 44 of the Court of Appeal Rules, 2022
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "National Social Security Fund Board of Trustees v Kenya Tea Growers’ Association & 8 others", Case Analysis (2026). Civil Appeal No. E656 of 2022 (ruling on Notice of Motion dated 10th June 2026). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1213/eng@2026-06-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.