Grace Otieno v Salaries and Remuneration Commisison [2021] KEELRC 691 (KLR)
The bottom line
#A Kenyan employment court ruled that once you appeal a judgment, you lose the right to ask the same court to review it.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the claimant's right to review the judgment delivered on 17th February, 2017 was extinguished upon filing of a Notice of Appeal and the hearing and disposal of Civil Appeal No. 418 of 2017
- 2.Whether the court became functus officio upon filing of the appeal and thus lacks jurisdiction to hear the application for review
- 3.Whether the application for review is incompetent and incurably defective as the order sought to be reviewed was already the subject of an appeal
Key legal issues
#Whether the court has jurisdiction to review its own judgment after the aggrieved party filed and pursued an appeal to the Court of Appeal
The court lacks jurisdiction; upon filing the appeal the right of review was lost and the court became functus officio. The preliminary objection is allowed.
Rule 33(1) of the ELRC (Procedure) Rules, 2016 permits review only by a person aggrieved by a decree or order from which no appeal is preferred or allowed. The claimant filed an appeal (Civil Appeal No. 418 of 2017) which was heard and dismissed. Citing William Karani and African Airlines International, the court held that once an appeal is taken, review is ousted and the matter merges in the appeal. Filing a review after the appeal would be an abuse of court process.
Legal principles established
#- Once an appeal is taken against a judgment, the right of review is ousted and the court becomes functus officio; all complaints must be raised in the appeal
- A review application must be filed before the appeal is lodged; once the appeal is heard, the review cannot be proceeded with
Court orders
#- 1.The respondent's Notice of Preliminary Objection dated 10th September, 2021 is found with merit and is allowed
- 2.Each party shall pay their own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Court of Appeal
- Civil Appeal No. 418 of 2017
- Jurisdiction invoked
- Section 16 of the Employment and Labour Relations Act, 2011 and Rule 33 of the Employment and Labour Relations Court (Procedure) Rules, 2016
Relief refused
#Review of the judgment delivered on 17th February, 2017 and award of interest on the damages awarded
Upon filing an appeal against the decree, order or judgment of the court, the right of review is lost; the court is functus officio and lacks jurisdiction to entertain the review after the appeal was heard and determined
Costs
Each party shall pay 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.
Upon filing an appeal against the decree, order or judgement of the court, the right of review is lost.
Once an appeal is taken, review is ousted and the matter to be remedied by review must merge in the appeal.
The claimant has since filed an appeal under which all complaints ought to have been addressed as to file the instant application seeking a review of the judgement herein after the appeal, this court has rendered itself with finality. It stand functus officio.
Accordingly, objections by the respondent vide notice dated 10th September, 2021 are found with merit and hereby allowed. Each party shall pay own costs.
Issues in the judgment
#Judgment does not state the case title, case number or neutral citation of the matter before the court
The two cases relied on by the claimant on entitlement to interest (Michael Murimi Kamanzi and Jasper Juma Nzuki) are cited but not addressed in the determination
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Grace Otieno v Salaries and Remuneration Commisison [2021] KEELRC 691 (KLR)", Case Analysis (2021). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/691/eng@2021-10-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.