Symon Onyango Okumu v Sharad Dahyabhai And 5 Others [2013] KEELRC 800 (KLR)
The bottom line
#The Industrial Court refused employers' attempt to overturn a dismissal award, confirming that losing parties must do their homework before judgment, not after.
What this practically means
#Executive summary
#Key legal issues
#Proof of service without affidavit of service
The ground failed; entry of appearance by advocates for all Respondents was adequate proof of service, reinforced by a letter of instructions signed on behalf of Kenya Film Corporation
The court found a Memorandum of Appearance filed by the advocates for all Respondents, which would not have been entered had there been no service. A letter of instructions signed by Hasmita Patel, the 6th Respondent, on behalf of Kenya Film Corporation instructed the firm to follow the matter to judicial conclusion. No allegation was made that she lacked capacity to instruct, and she did not allege lack of service at trial. The Applicants were sued as proprietors of the employer corporation, not personally.
Alleged errors apparent on the face of the record
No error apparent on the face of the record was established; the court had correctly used the gross salary as provided by Sections 36 and 49(1)(a) of the Employment Act
The Applicants alleged miscalculations under item 9 of the judgment and an award of notice pay above the Claimant's net salary of Kshs.29,104. On checking the judgment, the court confirmed it had used the gross salary in both instances, which it held to be the correct legal position under Sections 36 and 49(1)(a) of the Employment Act. The affidavit and submissions did not otherwise specify any error on the face of the record.
Failure of previous advocate to present documents as a ground for review
The ground failed; negligence of an advocate in not presenting documents is not a ground for review under the Rules
The Applicants alleged that their previous advocate failed to advance certain documents without their knowledge, and that these documents could have led to a different conclusion. The court held that this does not fall within the grounds for review prescribed by Rule 32 of the Industrial Court (Procedure) Rules 2010 and dismissed the ground.
Discovery of new documents or evidence
The ground failed; the Applicants did not identify the documents or show they could not have been obtained with due diligence
The Applicants claimed to have discovered documents not in their possession at trial but did not state what the documents were, why they were not in their possession, or where and when they were found. The court restated the legal threshold: new evidence must be matter which, after due diligence, was not within the applicant's knowledge or could not be produced when the decree was passed. The ground was not proved.
Review in the interest of justice and fair play (untyped proceedings, absence of directions)
The ground failed; directions were in fact taken at several mentions, the issue of untyped proceedings was never raised, and no nexus to the outcome was shown
The Applicants submitted in writing that proceedings were not typed before the award was prepared and that directions were not taken. The court's record showed the case was fixed for oral submissions on 26th July 2012, mentioned on 5th September, 5th October, 9th October and 7th November 2012, with directions taken at all mentions, and judgment set for 22nd January 2013. The typing issue was never raised by either party, and the Applicants did not explain how it affected the outcome.
Legal principles established
#- The Industrial Court may review its judgments, awards, orders or decrees under Section 16 of the Industrial Court Act and Rule 32 of the Industrial Court (Procedure) Rules 2010 on the grounds of discovery of new and important matter, error apparent on the face of the record, breach of written law, need for clarification, or other sufficient reasons
- Filing of a Memorandum of Appearance by an advocate is adequate proof of service of the pleadings on the party represented
- Discovery of new evidence for review requires that the documents, after exercise of due diligence, were not within the knowledge of the applicant and could not be produced when the decree was passed
Court orders
#- 1.The application for review dated 6th February 2013 is dismissed
- 2.Costs of the application awarded to the Claimant
- Jurisdiction invoked
- Section 16 of the Industrial Court Act and Rule 32 of the Industrial Court (Procedure) Rules 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Symon Onyango Okumu v Sharad Dahyabhai And 5 Others [2013] KEELRC 800 (KLR)", Case Analysis (2013). Not stated in judgment (application dated 6th February 2013 arising from a Memorandum of Claim dated 10th September 2010). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/800/eng@2013-09-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.