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ELRCDismissedNot stated in judgment· [2016] KEELRC 1006 (KLR)

Rem Ogodo Ogana v Kenya Sugar Board [2016] KEELRC 1006 (KLR)

Employment and Labour Relations Court
1 July 2016
1,303 words in judgment
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The bottom line

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A Kenyan employment court confirmed you can still ask for a judgment review after filing a notice of appeal, but vague constructive dismissal claims will fail.

What this practically means

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Executive summary

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This was a ruling on the claimant's application for review of a judgment delivered on 20th November 2015, in which the claimant had been awarded Kshs 1,950,000 for unpaid salaries. The claimant sought review on the basis that the court had failed to consider an amended statement of claim filed on 14th March 2014 introducing a prayer for 12 months' pay as compensation for constructive unfair termination of Kshs 1,800,000, arguing a mistake or error apparent on the face of the record under Rule 32(1)(a). The respondent opposed, arguing the parties had fully canvassed constructive termination at trial, that the court was functus officio, and that a notice of appeal filed on 25th November 2015 meant the proper route was a cross-appeal. The court framed two issues: whether a notice of appeal precludes a subsequent review application, and whether the review was meritorious. On the first, relying on Surgippharm Ltd and the Court of Appeal decision in Haryato, the court held an appeal is only instituted when the record of appeal is lodged, so it retained jurisdiction. On the merits, the court found that although the judgment overlooked the amended pleading, the claimant had pleaded no particulars of constructive dismissal; the resignation letter showed a voluntary resignation due to the company's inability to pay salaries. The court held constructive dismissal must be specifically pleaded with particulars, found the claimant had not made out such a case in the pleadings or testimony, and dismissed the application with costs.

Key legal issues

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01

Whether a notice of appeal precludes a subsequent application for review

Holding

It does not; the court retains jurisdiction to entertain review until the actual appeal is filed

Reasoning

Relying on Odunga J in Surgippharm Ltd, adopting the Court of Appeal decision in Haryato v E.D & F Man (Sugar) Ltd, the court held that an appeal is not instituted in the Court of Appeal until the record of appeal is lodged, fees paid and security provided under rule 58 together with a memorandum of appeal. Since only a notice of appeal had been filed, the court had jurisdiction to entertain the review application filed after it.

p. 2
02

Whether the review application was meritorious on the ground of error apparent on the face of the record

Holding

Although the judgment overlooked the amended memorandum of claim, the claimant had pleaded no factual or legal basis for constructive dismissal, so no award could issue on review

Reasoning

The court found that while the judgment overlooked the amended claim introducing a prayer for 12 months' compensation for constructive unlawful termination, the amendment pleaded no particulars of constructive dismissal. The resignation letter showed a voluntary resignation for want of salary, and the claimant testified to frustration, not constructive dismissal. The doctrine must be specifically pleaded with particulars, which was not done.

p. 3
03

Whether the respondent's functus officio objection and cross-appeal argument defeated the application

Holding

Implicitly rejected; the court entertained the review on jurisdiction despite the pending notice of appeal

Reasoning

The respondent argued the court was functus officio after delivering judgment and that the proper route was a cross-appeal given the notice of appeal filed on 25th November 2015. The court nonetheless determined the jurisdictional issue in favour of the claimant and reached the merits of the review, finding against the claimant on the substance rather than on functus officio.

p. 2

Legal principles established

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  • The lodging of a notice of appeal does not divest the trial court of jurisdiction to entertain an application for review, since an appeal is only instituted when the record of appeal is lodged in the Court of Appeal.
  • A claim for constructive dismissal or termination must be specifically pleaded with the specific particulars of the conduct that allegedly forced the employee out of employment.

Court orders

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  1. 1.The application for review is dismissed with costs

Authorities

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Legislation

  • Industrial Court (Procedure) Rules (implied from Rule 32 reference)Rule 32(1)(a) and 32(1)(b)
  • Court of Appeal Rules (implied from rule 58 reference)Rule 58

Cases cited (3)

  • HCC JR Misc application No 11 of 2012 ex-parte Surgippharm Ltd Vs the Anti-Counterfeit Agency and 3 others
    [2014] eKLR
  • Haryato Vs E. D & F Man (sugar) Limited
    Civil Appeal No 122 of 1992
  • Max Masound Roshankar Vs Sky Aero Limited as consolidated with Mawara Onica Vs Sky Aero Limited
    Nairobi Industrial Cause No 1519 of 2014 consolidated with No 1518 of 2014
Jurisdiction invoked
Rule 32(1)(a) and (b) of the Industrial Court rules permitting review on account of some mistake or error apparent on the face of the record

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, "Rem Ogodo Ogana v Kenya Sugar Board [2016] KEELRC 1006 (KLR)", Case Analysis (2016). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1006/eng@2016-07-01

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