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ELRCDismissedNot stated in judgment (Notice of Motion dated 07.03.2024)· [2024] KEELRC 1638 (KLR)

Sum v Njaggah & 2 others; Attorney General (Interested Party) (Constitutional Petition E130 of 2023) [2024] KEELRC 1638 (KLR)

Employment and Labour Relations Court
28 June 2024
BOBYRAM ONGAYA
846 words in judgment
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The bottom line

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Kenya's Employment Court dismissed a teacher's bid to review a judgment it had already delivered, confirming that dissatisfaction with a ruling must be raised on appeal, not review.

What this practically means

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Executive summary

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The applicant, who had lost her petition challenging disciplinary action (interdiction, warning and termination-related decisions) taken against her, filed a Notice of Motion dated 07.03.2024 under Sections 1A, 3A, 63(e) and 80(a) of the Civil Procedure Act and Rules 33 and 34 of the ELRC (Procedure) Rules, 2016 seeking review of the judgment delivered on 23rd February 2024, including certiorari quashing the twin decisions of interdiction and warning. She argued the court had erred in finding the allegations against her proved, ignored her pleadings and evidence, overlooked the alleged bias of board members who were both complainants and decision-makers, disregarded the alleged illegal composition of the disciplinary panel, and that a replacement had been hired to her position. The 1st and 2nd respondents and the interested party opposed through a replying affidavit, urging the application was an abuse of process and a disguised appeal. The 3rd respondent filed grounds of opposition contending the application was res judicata, that the court was functus officio, and lacked jurisdiction to sit on appeal over its own decision. The Court held that the applicant's grounds demonstrated dissatisfaction with the judgment rather than any recognised ground for review; no error apparent on the record or new evidence was established, and the proper remedy was an appeal. The application was dismissed with each party bearing its own costs, the Court noting the parties remained in a working relationship and costs were waived to foster workplace harmony.

Key legal issues

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01

Whether the grounds raised disclosed a basis for review

Holding

The grounds amounted to dissatisfaction with the judgment's analysis, not any recognised ground for review

Reasoning

The Court found the applicant was asking it to change its analysis and findings. Review requires an error on the face of the record, discovery of new evidence, or another known ground. None was established. The grievances raised were matters for appeal to the Court of Appeal, not for review by a court that had fully pronounced itself.

p. 3
02

Whether the Court retained jurisdiction over a decided matter

Holding

The Court is functus officio and cannot sit on appeal over its own decision

Reasoning

Having fully pronounced its opinion in the judgment of 23.02.2024, the Court had exhausted its jurisdiction. The 3rd respondent's grounds of opposition and the respondents' submissions that the Court lacks jurisdiction to re-try a decided case were adopted. A review application grounded on mere dissatisfaction is an abuse of process and a disguised appeal.

p. 3

Legal principles established

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  • A party dissatisfied with a first-instance judgment who cannot establish an error apparent on the face of the record, new evidence, or any other recognised ground for review must pursue the appellate route; the trial court becomes functus officio upon delivering judgment

Court orders

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  1. 1.The Notice of Motion dated 07.03.2024 seeking review of the judgment delivered on 23rd February 2024 is dismissed
  2. 2.Each party to bear own costs
Jurisdiction invoked
Sections 1A, 3A, 63(e) and 80(a) of the Civil Procedure Act; Rules 33 and 34 of the Employment and Labour Relations Court (Procedure) Rules, 2016; Article 159(1) and (2) of the Constitution of Kenya, 2010

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, "Sum v Njaggah & 2 others; Attorney General (Interested Party) (Constitutional Petition E130 of 2023) [2024] KEELRC 1638 (KLR)", Case Analysis (2024). Not stated in judgment (Notice of Motion dated 07.03.2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1638/eng@2024-06-28

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