Lochab Brothers Limited v Transport Workers Union
The bottom line
#The Court of Appeal refused to reopen a decided case, confirming that objections to a late appeal must be raised through proper applications, not arguments.
What this practically means
#Executive summary
#Key legal issues
#Scope of the slip rule under Rule 37 of the Court of Appeal Rules
Rule 37 permits correction only of clerical or arithmetical mistakes or errors arising from accidental slip or omission, so as to give effect to the Court's intention. No such error existed here.
The court examined its prior judgment and found no clerical, typographical or accidental omission undermining its intent. The applicant's real complaint was that the appeal was filed out of time - a substantive jurisdictional question. The court held such a question cannot be repackaged as a slip for purposes of review, and Rule 75 relied upon by the applicant was inapplicable as it deals with review in the context of the Criminal Procedure Code.
Consequence of failing to object to competence of appeal in time (Rules 86 and 107(b))
A party affected by an appeal must apply under Rule 86 to strike out a notice or appeal filed out of time within the prescribed period; failing that, leave under Rule 107(b) is required to raise the objection, neither of which occurred.
Rule 86 bars a strike-out application brought more than thirty days after service of the notice or record of appeal. The applicant only raised the out-of-time filing in submissions dated 23rd April 2024, by which time it was time-barred and no formal application had been made. Rule 107(b) forbids raising the objection at the hearing without leave, and no leave was sought. The procedural route was therefore lost.
Finality of judgments and the Court's residual jurisdiction to review
Even after the 2010 Constitution, the Court of Appeal's residual jurisdiction to correct errors of law causing real injustice does not displace the principle of finality; review cannot be used to reopen determined matters.
Relying on Menginya Salim Murgani v Kenya Revenue Authority, which reaffirmed Benjoh Amalgamated Ltd v Kenya Commercial Bank Ltd, the court noted the residual post-2010 jurisdiction to correct errors occasioning real injustice. However, that jurisdiction calls for a balance of finality and justice, and cannot be invoked through the back door where the front door of timely objection was open and unused.
Legal principles established
#- Review under the slip rule is confined to clerical or arithmetical mistakes or accidental slips; a substantive question of jurisdiction cannot be raised through review.
- An objection to the competence of an appeal on the ground that the notice of appeal was filed out of time cannot be raised through submissions; it must be raised by formal application under Rule 86 or with leave under Rule 107(b).
- A respondent who fails to invoke Rule 86 within the prescribed time and does not seek leave under Rule 107(b) cannot reopen the competence of a determined appeal through a review application; finality prevails.
Court orders
#- 1.Application for review of the judgment of 26th July 2024 dismissed
- 2.Costs of the application awarded to the respondent
- On appeal from
- Employment and Labour Relations Court
- ELRC Cause No. 414 of 2013 (Ongaya J), judgment dated 28th March 2014; appeal decided by this Court (Warsame, Ochieng & Mativo JJA) on 26th July 2024
- Jurisdiction invoked
- Rule 37 of the Court of Appeal Rules (slip rule / correction of orders) and Article 159(2)(d) of the Constitution of Kenya 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Lochab Brothers Limited v Transport Workers Union", Case Analysis (2025). Review application within the appeal from ELRC Cause No. 414 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/848/eng@2025-05-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.