Kenya Game Hunting & Safari Workers Union v Galaxy Crocodile Ltd [2013] KEELRC 600 (KLR)
The bottom line
#Kenya's Industrial Court dismissed a bid to add leave, overtime and allowance claims to a redundancy award because those claims were never pleaded or proved in the original case.
What this practically means
#Executive summary
#Key legal issues
#Whether the omission of leave, overtime and acting allowances from the award constituted an error apparent on the face of the record
No - these matters were not issues before the court in the original proceedings, so their omission was not an error on the record.
The court examined the 2nd November 2012 judgment, which had framed only two issues: reinstatement and unfairness of the redundancy. The judge decided on the pleadings and evidence presented. Whether the matter had passed through the District Labour Officer in Kerugoya or a Reconciliator was not an issue before the court. Dues not pleaded or proved cannot be introduced after judgment as purported errors.
Whether the dues constituted new and important matter or evidence
No - any such dues arose at termination and were not new at the time of filing the claim; the supporting record was not even attached to the claim.
For new and important evidence to justify review, it must not have been within the party's possession when the matter was heard. Overtime, leave and acting allowance claims existed at termination and could have been pleaded and proved then. The record now relied on was not attached to the claim, and the court declined to disturb the judge's findings.
Whether the finding on Elly Otuoma's contract was erroneous
No - no evidence of a month-to-month or ongoing contract was attached to the review application, so the original finding stands.
The original court found Otuoma's fixed term contract had lapsed and therefore awarded him no redundancy dues. The party asserting he was on a monthly contract bore the duty to place that evidence before the court. No such evidence accompanied the review application, so the award could not be faulted on this ground either.
Legal principles established
#- The grounds for review are discovery of new and important matter or evidence, an error or mistake apparent on the face of the record, or any other sufficient reason, and these apply only where the aggrieved party has not preferred an appeal.
- A misconstruction or erroneous interpretation of the law is not a good ground for review; it is a ground of appeal.
- A court decides a matter on the record and evidence before it and cannot introduce new claims or evidence outside its jurisdiction.
- Claims such as overtime, leave and acting allowances must be specifically pleaded and proved in evidence.
Court orders
#- 1.The application for review dated 23rd November 2012 is dismissed for lack of merit
- 2.No orders as to costs
- Jurisdiction invoked
- Rule 32 of the Industrial Court (Procedure) Rules and section 16 of the Industrial Court Act (review jurisdiction)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Game Hunting & Safari Workers Union v Galaxy Crocodile Ltd [2013] KEELRC 600 (KLR)", Case Analysis (2013). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/600/eng@2013-07-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.