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ELRCDismissedNot stated in judgment· [2024] KEELRC 906 (KLR)

Mulwa v Board of Management Mbooni Boys High School (Cause 842 of 2015) [2024] KEELRC 906 (KLR)

Employment and Labour Relations Court
25 April 2024
1,561 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court confirmed it cannot reopen a finished case just because new practice directions emerged — appeals, not reviews, are the remedy.

What this practically means

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Executive summary

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By a Notice of Motion dated 30th October 2023, the Claimant sought review of part of a judgment delivered by Makau J on 9th July 2020, in which he had been awarded Kshs. 147,876.90 for unlawful dismissal but the Court declined jurisdiction over his work injury claim under WIBA, referring that claim to the Director of Occupational Safety and Health Services. The Claimant argued that the Chief Justice's practice directions in Gazette Notice No. 5476 of 28th April 2023 allowed work injury claims filed before the Supreme Court's 2019 decision in Law Society of Kenya v Attorney General & another to proceed to conclusion in the ELRC, and that this constituted sufficient cause to re-open the suit for submissions on the injury claim. The Respondent opposed, contending the Court was functus officio, that the motion would amount to sitting on appeal over its own decision, and that practice direction No. 7 applied only to pending claims, the applicable direction for concluded cases being No. 8. Reviewing the case law on functus officio, the Court held that a court does not automatically become functus officio upon judgment, but its post-judgment jurisdiction is residual and incidental, aimed solely at wrapping up proceedings. The Court found the Claimant had ignored the directions in the 2020 judgment, that the jurisdictional issue was beyond its reach, and that appeal, not review, was the proper remedy. The application was dismissed with each party bearing their own costs.

Key legal issues

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01

Functus officio after final judgment

Holding

A court is not functus officio merely because it has delivered a final judgment, but retains only residual and incidental jurisdiction to wrap up proceedings, not to re-try or re-open the cause

Reasoning

Relying on Raila Odinga (SC), Silvanus Kizito v Edith Nkirote Mwiti and Leisure Lodge Ltd v Japhet Asige, the Court held that post-judgment powers such as stay, review and execution exist to bring litigation to an end. Re-opening a concluded 2020 suit on the strength of practice directions issued three years later exceeded that residual jurisdiction and amounted to an abuse of process.

p. 4
02

Sufficiency of the Chief Justice's practice directions as ground for review

Holding

Practice direction No. 7 of Gazette Notice No. 5476 applied to pending claims, not to concluded cases; it did not constitute sufficient cause under Rule 33 to re-open a fully determined suit

Reasoning

The Respondent argued, and the Court accepted, that the matter was fully determined with the WIBA claim referred to the Director of Occupational Safety and Health Services. The applicable practice direction for concluded cases was No. 8, directing such claims to commence before DOHHS. The Claimant could not rely on directions for pending claims to revive a closed file.

p. 2
03

Abuse of court process in seeking review

Holding

Seeking to re-open a concluded suit after ignoring the court's directions was an abuse of process

Reasoning

The Court found the Claimant had been given clear directions in the 2020 judgment regarding his work injury claim, over which the Court had no primary jurisdiction. Instead of complying or appealing, the Claimant sought to have the same Court re-open the claim, which the Court viewed dimly as an abuse of process.

p. 4

Legal principles established

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  • A court does not automatically become functus officio upon rendering judgment; its post-judgment jurisdiction is residual and incidental, aimed at conclusively wrapping up proceedings
  • Post-judgment jurisdiction cannot be used to re-open a matter determined on jurisdiction, where the remedy was an appeal

Court orders

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  1. 1.The Claimant's application dated 30th October 2023 is dismissed
  2. 2.Each party to bear their own costs

Authorities

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Legislation

  • Employment and Labour Relations Court ActSection 16
  • Employment and Labour Relations Court (Procedure) RulesRule 33(1)
  • Work Injury Benefits Act (WIBA)Not specified
  • Gazette Notice No. 5476 of 28th April 2023 (Chief Justice's practice directions)Practice directions 7 and 8

Cases cited (5)

  • Law Society of Kenya v Attorney General
    [2009] eKLR
  • Law Society of Kenya v Attorney General & another
    [2019] eKLR
  • Raila Odinga & 2 others v Independent Electoral & Boundaries Commission & 3 others
    [2013] eKLR
  • Silvanus Kizito v Edith Nkirote Mwiti
    [2021] eKLR
  • Leisure Lodge Ltd v Japhet Asige and another
    [2018] eKLR
Jurisdiction invoked
Section 16 of the Employment and Labour Relations Court Act and Rule 33 of the Employment and Labour Relations Court (Procedure) Rules

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, "Mulwa v Board of Management Mbooni Boys High School (Cause 842 of 2015) [2024] KEELRC 906 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/906/eng@2024-04-25

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