Kenneth Njagi Mburia & 4 others v Tharaka Nithi County Government [2021] KEELRC 1107 (KLR)
The bottom line
#Kenya's Employment Court confirmed it can review its own rulings, allowing former county officials to pursue unpaid gratuity after an earlier decision struck out their case.
What this practically means
#Executive summary
#Key legal issues
#Functus officio and jurisdiction to review
The court retained jurisdiction to entertain the review application; the ruling of 6th October, 2020 did not render it functus officio.
Relying on Peterson Ndung'u v Kenya Power and the Supreme Court authorities cited therein (Raila Odinga v IEBC, Menginya Slim Murgani v KRA, Jersey Evening Post v Al Thani), the court held that a court becomes functus officio only after performing all its duties to finality. The doctrine does not prevent a judicial change of mind nor bar an application for review under Rule 33. The ruling was not final since the main cause had not been substantively heard.
Compliance with Rule 33(3) - annexing a copy of the order
The application was properly before the court; the word 'or' in Rule 33(3) is disjunctive, so annexing either the ruling or the order suffices.
The Claimants annexed a copy of the impugned Ruling marked 'MBG 3' to the supporting affidavit. Applying the Supreme Court's interpretation of the word 'or' as disjunctive in Raila Amolo Odinga v IEBC, an applicant may attach either the ruling or the order to be reviewed. The authorities relied on by the Respondent were based on the Civil Procedure Rules and inapplicable; strict enforcement would offend Article 159(2)(d) against undue regard to technicalities.
Error apparent on the face of the record
The ruling of 6th October, 2020 erred in treating the Claimants' gratuity claim as a challenge to their removal from office, warranting review and reinstatement of the cause.
The original Statement of Claim sought payment of dues/gratuity and interest, not a challenge to removal. The impugned ruling struck out the cause on the erroneous basis that County Executive Committee Members could not challenge their removal by the Governor under Section 31(a) of the County Governments Act. This mischaracterisation was a self-evident error correctable on review under Rule 33(1)(b), justifying quashing the ruling and reinstating the cause.
Legal principles established
#- A court is not functus officio in respect of an application for review of its own ruling; the doctrine does not bar hearing a review application brought under the applicable procedural rules.
- An erroneous self-evident finding on the face of a ruling, such as mischaracterising a gratuity claim as a challenge to removal from office, is a ground for review under Rule 33.
Court orders
#- 1.The application dated 10th November, 2020 for review of the ruling and orders dated 6th October, 2020 is allowed
- 2.Each party to bear their own costs of the application
- Jurisdiction invoked
- Rule 33(1) of the Employment and Labour Relations Court (Procedure) Rules, 2016 - review of a judgment or ruling
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenneth Njagi Mburia & 4 others v Tharaka Nithi County Government [2021] KEELRC 1107 (KLR)", Case Analysis (2021). Application dated 10th November, 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1107/eng@2021-07-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.