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ELRCDismissedNot stated in the judgment· [2021] KEELRC 2358 (KLR)

Muchiri Kirathe v Teachers Service Commission [2021] KEELRC 2358 (KLR)

Employment and Labour Relations Court
23 March 2021
MMM. Mbaru
1,374 words in judgment
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The bottom line

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A Kenyan employment court dismissed both a teacher's request to review its judgment and the TSC's bid to appeal late, showing courts can't reopen their own decisions.

What this practically means

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Executive summary

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This ruling of the Employment and Labour Relations Court at Nairobi, delivered by M. Mbaru J on 23rd March 2021, determined two applications arising from a judgment of 27th October 2020 in an employment dispute between a claimant acting in person and the Teachers Service Commission. The respondent's application dated 15th December 2020, supported by the affidavit of Flora Manyasa, sought extension of time to file and serve a Notice of Appeal, citing her indisposition due to COVID-19 isolation on the delivery date. The claimant's application dated 20th December 2020 sought review or revision of the judgment under Section 16 of the Employment and Labour Relations Court Act, Section 12(3)(v) and (vi) of the Employment and Labour Relations Act, and Article 47(1) of the Constitution, contending that his pleaded claims - salary during wrongful suspension, losses over incomplete postgraduate studies, denied promotion, inability to service a loan, damages for wrongful disciplinary action, and interest - had not been fully awarded. The court framed two issues: whether to extend time for the Notice of Appeal, and whether to review the judgment. It held that having rendered judgment, it is denied further jurisdiction to address any appeal arising from its own decision; an out-of-time Notice of Appeal is a matter for the appellate court. On review, applying Rule 33 of the ELRC (Procedure) Rules, 2016 and the decision in Gerald Kithu Muchanje v Catherine Muthoni Ngare, the court found no new matter, error, need for clarification or sufficient cause; dissatisfaction with findings is a matter for appeal. Both applications were dismissed without merit, with each party bearing their own costs.

Key legal issues

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01

Whether the court should extend time to file Notice of Appeal out of time

Holding

The court declined, holding it lacks jurisdiction to entertain appeals from its own decisions; such applications are for the appellate court.

Reasoning

Section 17 of the Employment and Labour Relations Court Act, 2011 gives a right of appeal. Once this court delivers judgment, the rules governing the appellate court apply, and this court is denied further jurisdiction to address any appeal arising out of its own decision, order or judgment. An out-of-time Notice of Appeal is therefore a matter for the appellate court, not this court.

p. 2
02

Whether the court should review its judgment delivered on 27th October 2020

Holding

The review application failed; no ground under Rule 33 was established.

Reasoning

Rule 33(1) permits review only on discovery of new and important matter, mistake or error apparent on the face of the record, need for clarification, or other sufficient reason. The court found the claimant merely disagreed with the findings and remedies in the judgment, which had addressed all pleaded claims; such dissatisfaction must be pursued by appeal, not review.

p. 3

Legal principles established

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  • Once this Court has delivered judgment, it is functus officio and denied further jurisdiction to address any appeal arising from its own decision; applications for extension of time to appeal lie to the appellate court.
  • Review under Rule 33 requires discovery of new and important matter, an error apparent on the face of the record, need for clarification or other sufficient reason; dissatisfaction with findings is not a ground for review but for appeal.
  • A party wishing to challenge the merits of an order should pursue an appeal, while review must be framed pursuant to Rule 33.

Court orders

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  1. 1.The respondent's application dated 15th December 2020 seeking extension of time to file Notice of Appeal is dismissed
  2. 2.The claimant's application dated 20th December 2020 seeking review/revision of the judgment of 27th October 2020 is dismissed
  3. 3.Each party shall bear their own costs
Jurisdiction invoked
Section 16 and Section 17 of the Employment and Labour Relations Court Act, 2011; Rule 33 of the Employment and Labour Relations Court (Procedure) Rules, 2016

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, "Muchiri Kirathe v Teachers Service Commission [2021] KEELRC 2358 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/2358/eng@2021-03-23

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