https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1213

National Social Security Fund Board of Trustees v Kenya Tea Growers’ Association & 15 others (Civil Appeal E656 of 2022) [2026] KECA 1213 (KLR) (26 June 2026) (Ruling) Neutral citation: [2026] KECA 1213 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Appeal E656 of 2022 W Karanja, K M'Inoti & P Nyamweya, JJA June 26, 2026 Between National Social Security Fund Board of Trustees Applicant and Kenya Tea Growers’ Association 1st Respondent Agricultural Employers’ Association 2nd Respondent Kenya County Governement Workers Union 3rd Respondent Hon. Attorney General 4th Respondent The Cabinet Secretary For Labour, Social Security And Services 5th Respondent Retirement Benefits Authority 6th Respondent Competition Authority Of Kenya 7th Respondent Kenya Quarry And Mine Workers Union 8th Respondent Kenya Building, Construction, Timber Furniture And Allied Workers Union 9th Respondent Kenya Union Of Entertainment & Music Industry Employees 10th Respondent Union Of National, Research Institutes Of Kenya(Unirisk) 11th Respondent Kenya Glass Workers Union 12th Respondent Nkauraki Edwin Lesidai & 89 Others 13th Respondent Kenya Plantations And Agricultural Workers Union 14th Respondent and Central Organization Of Trade Unions (COTU)… 1st Interested Party Federation Of Kenya Employers (FKE) 2nd Interested Party (An application to set aside, recall and/ or vacate the ruling of the Court of Appeal at Nairobi (W. Karanja, M’Inoti & Nyamweya JJ.A) dated 29th May 2026 in Nairobi Civil Appeal (Application) No. E656 of 2022 Petition 38, 34, 35, 49 & 50 of 2014 (Consolidated) ) Ruling 1.On 29th May 2026, this Court (W. Karanja, K. M'Inoti and P. Nyamweya, JJ.A) delivered a ruling declining to grant orders of stay of execution of the judgment delivered on 19th September 2022 by the Employment and Labour Relations Court at Nairobi (M.N. Nduma, H. Wasilwa and M. Mbaru, JJ.) in ELRC Petition No. 38 of 2014, which orders had been sought in an application dated 14th October 2022 filed within this appeal. The said application was one of four applications filed in the appeal, two of which were for stay of execution of the ELRC judgment, and two of which were for joinder of interested parties. 2.Subsequent to the delivery of the ruling of 29th May 2026, the Court received communication by way of a letter dated 2nd June 2026 from Messrs. Ngatia & Associates Advocates, who are on record for the National Social Security Fund, the appellant herein, indicating that the ruling which was scheduled for delivery was on an application dated 23rd September 2024 by the Kenya Export Floriculture, Horticulture and Allied Workers Union seeking to be joined in the appeal as an Interested Party, and which was heard inter partes by the Court on 23rd January 2025. However, that there as an error, and the ruling that the Court delivered on 29th May 2026 was on a different application, which was not a live issue. 3.Upon receipt of the communication, the Court set this appeal for mention, and explained to the parties the circumstances leading to the error, which was occasioned by the multiplicity of pending applications before the Court, an error which the Court regretted. In determining the way forward, we were informed that the Attorney General, the 4th respondent herein, had already filed an application to set aside and vacate the ruling delivered on 29th May 2026, and we gave directions as regard the hearing and determination of the application. This ruling is, accordingly, on the said application, being the Notice of Motion dated 10th June 2026 filed by the Attorney General pursuant to Articles 159(1)(d) and 164(3) of the Constitution, Sections 3(2), 3(3), 3A(1), 3A(2), and 3B(a), (b) and (c) of the Appellate Jurisdiction Act, as well as Rules 1(2) and 44 of the Court of Appeal Rules, 2022. 4.The application seeks to set aside, recall and/or vacate the ruling dated 29th May 2026, and delivery of the ruling on the application dated 23rd September 2024 by the Kenya Export Floriculture, Horticulture and Allied Workers Union. The applicant further prayed that Civil Appeal No. E656 of 2022 - National Social Security Fund vs Kenya Tea Growers Association & Others, be fixed for hearing together with any pending applications arising therefrom. The application was supported by an affidavit sworn on 10th June 2026 by Ms. Scholastica Mbilo, Deputy Chief State Counsel in the Office of the Attorney General, and written submissions dated 15th June 2026. Although the application was duly served upon them, none of the respondents filed a response in opposition to it. 5.The chronology of events leading to the present application were set out by the Attorney General in the application. In summary, and as indicated hereinabove, the Kenya Export Floriculture, Horticulture and Allied Workers Union (the Union) filed the application dated 23rd September 2024 seeking to be joined in the appeal as an interested party. Prior to this application, the National Social Security Fund which had filed the substantive appeal, also filed the application dated 14th October 2022 under Rule 5(2)(b) of the Court of Appeal Rules seeking stay of execution of the orders arising from the impugned judgment. Although the application dated 14th October 2022 for stay was heard inter partes on 14th November 2022 and reserved for ruling, no ruling was delivered thereon because in the meantime the substantive appeal was heard and determined by this Court, which rendered its judgment on 3rd February 2023. The applicant contended that, upon determination of the appeal, the application dated 14th October 2022 consequently became spent and was overtaken by events. 6.It was further deponed that the Kenya Tea Growers Association, the 1st respondent herein and others, being dissatisfied with the judgment of the Court of Appeal of 3rd February 2023, lodged an appeal before the Supreme Court of Kenya being Petition No. E004 of 2023, which was determined on 21st February 2024. The Supreme Court allowed the appeal on the ground that the Employment and Labour Relations Court had jurisdiction, and remitted the matter to this Court for determination on the substantive merits. Consequently, the substantive appeal remained pending before this Court and, the only application pending determination was the application dated 23rd September 2024 seeking joinder of the Union as an Interested Party. 7.Therefore, that the ruling delivered on 29th May 2026 was founded on an error apparent on the face of the record, and rectification of the error would serve the interests of justice, clarify the record, facilitate the hearing of Civil Appeal No. E656 of 2022 together with any pending applications, and occasion no prejudice or irreparable loss to the respondents. 8.We heard the application on this Court’s virtual platform on 18th June 2026. Learned counsel appeared as follows:, Mr. Fred Ngatia, SC, for the appellant; Mr. Geoffrey Obura was present for the 1st and 2nd respondents; Ms. Tamari Katana held brief for Mr. Kithi, for the 3rd respondent; Ms. Scholastica Mbilo was present for the 4th, 5th and 7th respondents; Mr. Njenga was present for the 3rd interested party, Mr. Wanyenji Njoroge held brief for Dr. Muthomi Thiankolu, SC, for the 4th interested party; while Mr. Mbarak Awadh was present for the National Assembly (an Affected Party). 9.Ms. Mbilo highlighted her written submissions in support of the application, and indicated that she was abandoning the prayer in the application that Civil Appeal No. E656 of 2022 - National Social Security Fund vs Kenya Tea Growers Association & Others, be fixed for hearing together with any pending applications arising therefrom, in light of the pending ruling on the application dated 23rd September 2024 which needed to be delivered first. In addition, the prayer in the application for the delivery of the ruling on the application dated 23rd September 2024 was dispensed with during the hearing held on 18th June 2026, and we set a new ruling date, namely 3rd of July 2026, for the said application. 10.Learned counsel addressed three issues on the outstanding prayer for setting aside of the ruling delivered on 29th May 2026 .The first issue was whether there was an error apparent on the face of the ruling dated 29th May 2026. It was submitted in this respect that an error apparent on the face of the record is one that is self-evident and does not require a re- evaluation of the matter. Reliance was placed on the decision of this Court in Stephen Wanyoike Kinuthia (suing on behalf of John Kinuthia Marega (deceased)) vs Kariuki Marega & Another [2018] eKLR, where the Court, citing Mayodi vs Industrial and Commercial Development Corporation & Another [2006] 1 EA 243 and Nyamogo & Nyamogo vs Kogo [2001] EA 174, held that an error apparent on the face of the record is an obvious and patent error that does not call for elaborate reasoning or admit of two opinions. In this respect, that the record clearly shows that the application dated 23rd September, 2024 seeking joinder of the Union as an Interested Party was heard on 23rd January, 2025 and reserved for ruling. However, on 29th May, 2026, the Court delivered a ruling on the application dated 14th October, 2022 seeking stay of execution, which had been overtaken by events following determination of the substantive appeal on 3rd February, 2023. Therefore, that the error is apparent from the record itself. The application that was heard remains undetermined, while an application that was no longer live before the Court became the subject of the ruling. 11.The second issue was whether this Court had jurisdiction to recall and set aside that ruling, and the Attorney General submitted that the Court retained inherent jurisdiction under Rule 1(2) of the Court of Appeal Rules, 2022 to make such orders as may be necessary for the ends of justice and to prevent abuse of its process. Reliance was placed on the decision in Telkom Kenya Limited vs John Ochanda [2014] KECA 600 (KLR), where this Court recognized two exceptions to the doctrine of functus officio where there had been an accidental slip, and where there was an error in expressing the manifest intention of the court. Further reliance was placed on the decisions Benjoh Amalgamated Limited & Another vs Kenya Commercial Bank Limited [2014] eKLR and National Bank of Kenya Limited vs Ndung'u Njau [1997] eKLR for the proposition that the Court retains inherent jurisdiction to prevent injustice and to correct errors apparent on the face of the record, though it cannot sit on appeal over its own decisions. The Attorney General, therefore, urged the Court to invoke its inherent jurisdiction to recall and vacate the ruling dated 29th May 2026 and proceed to determine the application dated 23rd September 2024 on its merits. 12.The last issue was whether the ruling delivered on 29th May 2026 was amenable to recall. The Attorney General maintained that the present application did not seek a review of the merits of the ruling or reconsideration of the issue of joinder, but rather sought correction of a situation where a ruling had been delivered on an application that was not live before the Court, while the application that had been heard and reserved for ruling remained undetermined. The Attorney General also emphasized that it was not asking the Court to sit on appeal against its own decision. Lastly, that maintaining the ruling in its present form would leave unresolved the application that had been heard while purporting to determine an application that had already been spent, thereby undermining the administration of justice and the respondents would suffer no prejudice if the application is allowed. 13.Learned Senior Counsel Mr. Ngatia made oral submissions supporting the application. Senior Counsel submitted that the power to recall a decision is inherent in every Court of record and may be exercised so long as the ruling or decision has not been perfected. It was contended that the ruling dated 29th May 2026 had not been perfected, since it plainly determined the wrong application. It was argued that the application for stay of execution, which formed the subject of the impugned ruling, had been spent after the parties elected to proceed with the hearing of the substantive appeal, culminating in the judgment delivered on 3rd February 2023. Consequently, there was no longer any question of a stay of execution pending appeal after that date. The appellant, therefore, supported the Attorney General's request for recall of the ruling. 14.Senior Counsel further submitted that the application for joinder, which had been heard and reserved for ruling, remained pending and had impeded the implementation of the Supreme Court's direction that the remitted appeal be heard on a priority basis, and that the appeal could not proceed while an interlocutory application remained undetermined. Senior counsel maintained that a formal ruling from this Court was necessary to finally dispose of the joinder application. While accepting the Court's apology without reservation, counsel urged the Court to remedy the situation, noting that the parties had suffered prejudice as some persons had taken advantage of the perception that the Court of Appeal had declined to grant a stay of the trial court's judgment. 15.Mr. Obura similarly made oral submissions, and stated that the 1st and 2nd respondents did not oppose the application. Counsel urged the Court to determine the issue of joinder as a matter of priority and thereafter fix the appeal for hearing. Ms. Katana also did not oppose the application and associated herself with the submissions by Mr. Ngatia SC and Mr. Obura. Mr. Njenga and Mr Awadh submitted that the error was evident from the record and left the decision to the Court, while Mr. Njoroge indicated that the 4th interested party would not take any position, and left the matter to the Court's discretion. 16.We have considered the application by the Attorney General and submissions made in support thereof. It is evident that the fact that there was an error apparent of the record in relation to the ruling delivered on 29th May 2026 is not in contest, for the reason the said ruling was on an application that was not live before the Court. In this regard, we bear in mind the definition of the term “error on the face of the record” by this Court in Muyobi vs Industrial and Commercial Development Corporation [2006] 1 EA 243 as follows:-“…In Nyamogo & Nyamogo -vs- Kogo (2001) EA 174 this Court said that an error apparent on the face of the record cannot be defined precisely or exhaustively, there being an element of indefiniteness inherent in its very nature, and it must be left to be determined judicially on the facts of each case. There is real distinction between a mere erroneous decision and an error apparent on the face of record. Where an error on a substantial point of law stares one in the face, and there could reasonably be no two opinions, a clear case of error apparent on the face of the record would be made out. An error which has to be established by long drawn process of reasoning or on points where there may conceivably be two opinions, can hardly be said to be an error apparent on the face of the record. Again, if a view adopted by the court in the original record is a possible one, it cannot be an error or wrong view is certainly no ground for a review although it may be for an appeal…” 17.It is also not in dispute that this Court is clothed with inherent jurisdiction under section 3A of the Appellate Jurisdiction Act and Rule 1(2) of the Court of Appeal Rules to make any orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court. The jurisdiction of this Court to review and set aside its own rulings and judgments was extensively addressed in Benjoh Amalgamated Limited & another v Kenya Commercial Bank Limited [2014] KECA 872 (KLR). On the powers of review, this Court stated as follows:“27.In the High Court, both the Civil Procedure Act in section 80 and the Civil Procedure Rules in Order 45 rule 1 confer on the court power to review. Rule 1 of Order 45 shows the circumstances in which such review would be considered range from discovery of new and important matter or mistake or error apparent on the face of the record or any other sufficient reason but section 80 gives the High Court greater amplitude for review. There is no similar statute law in this Court.28.In this Court, save for the slip rule embedded in rule 35 of the Court of Appeal Rules which enables the Court to effect its manifest intention in a judgment or order, there is no apparent jurisdiction to review orders or judgments. And even in exercise of its inherent jurisdiction in the application of the slip rule, it seems that the Court could not travel beyond correcting errors in the judgments. Sir Charles Newbold in Lakhamshi Brothers Ltd v. Raja & Sons case (1966) E.A. 313 reiterated the words of the predecessor of this Court in Raniga v. Jivraj [1965] EA 700 (K) where the court stated that;“a court will, of course, only apply the slip rule where it is fully satisfied that it is giving effect to the intention of the court at the time when judgment was given or, in the case of a matter which was overlooked, where it is satisfied beyond doubt, as to the order which it would have made had the matter been brought to its attention.” 18.The Court then proceeded to address its powers to review its judgments, and noted that opinion was divided on whether it has jurisdiction to do so and that there were conflicting decisions on the matter prior to the promulgation of the 2010 Constitution. The Court examined the impact of the new constitutional provisions on its jurisdiction in relation to review of its decisions and comparative case-law on the subject of review jurisdiction, and held as follows:“57.The jurisprudence that emerges from the case-law from the aforementioned jurisdictions shows that where the Court is of final resort, and notwithstanding that it has not explicitly been statutorily conferred with the jurisdiction to reopen a decided matter, it has residual jurisdiction to do so in cases of fraud, bias, or other injustice with a view to correct the same and in doing so the principles to be had regard to are, on the one hand, the finality principle that hinges on public interest and the need to have conclusiveness to litigation and on the other hand, the justice principle that is pegged on the need to do justice to the parties and to boost the confidence of the public in the system of justice. As shown in the various authorities, this is jurisdiction that should be invoked with circumspection and only in cases whose decisions are not appealable (to the Supreme Court).” 19.We agree with the conclusion reached in the said decision that this Court not being the final court has residual jurisdiction to review its decisions to which there is no appeal to correct errors of law that have occasioned real injustice or failure or miscarriage of justice, and that erode public confidence in the administration of justice. However, we also note the thresholds set by the Court, namely that this jurisdiction has to be exercised cautiously and only where it will serve to promote public interest and enhance public confidence in the rule of law and our system of justice; and should not be invoked where there is laches or where legal rights of innocent third parties have vested during the intervening period which cannot be interfered with without causing further injustice. 20.In the present application, public confidence in the administration of justice is at stake, since the Court delivered the ruling dated 29th May 2026 on an application which was not live and on which the parties had not been heard, and it is a constitutional imperative that parties should be given the opportunity to be heard before any decision is made affecting their rights or interests. In addition, the application dated 23rd September 2024 which was the subject of the hearing remains undetermined, and it is in the interests of justice that the said application is determined timeously to progress the hearing and determination of the remitted appeal. 21.Lastly, we are grateful and appreciative that learned counsel for the appellant and the Attorney General moved with haste to alert the Court of the error apparent on the face of the record, and thereby averting the risk of the ruling having unintended adverse effects. We, therefore, find that the ruling erroneously delivered by this Court on 29th May 2026 is amenable to setting aside in the interests of justice, and we accordingly set aside the said ruling in its entirety. Given that the instant application arose from an error by the Court, we shall make no order as regards the costs of the application. 22.It is so ordered. DATED AND DELIVERED AT NAIROBI THIS 26TH DAY OF JUNE 2026.W. KARANJA.....................................JUDGE OF APPEALK. M’INOTI.....................................JUDGE OF APPEALP. NYAMWEYA.....................................JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR.