Rem Ogodo Ogana v Kenya Sugar Board [2016] KEELRC 1006 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether a notice of appeal precludes a subsequent application for review
It does not; the court retains jurisdiction to entertain review until the actual appeal is filed
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.
Whether the review application was meritorious on the ground of error apparent on the face of the record
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
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.
Whether the respondent's functus officio objection and cross-appeal argument defeated the application
Implicitly rejected; the court entertained the review on jurisdiction despite the pending notice of appeal
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.
Legal principles established
#- 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
#- 1.The application for review is dismissed with costs
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.