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ELRCDismissedNotice of Motion dated 19th July, 2012· [2013] KEELRC 971 (KLR)

Stephen Omboga And 9 others v Spin Knit Ltd [2013] KEELRC 971 (KLR)

Industrial Court of Kenya
20 December 2013
1,579 words in judgment
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The bottom line

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What this practically means

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Executive summary

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This was a Notice of Motion dated 19th July 2012 in which the Claimants sought leave to change advocates from Gatitu Wang'oo & Co. Advocates to S. Ndege & Company Advocates, review of the Industrial Court's award delivered on 13th July 2011, or alternatively setting aside of the award and rehearing of the cause, with costs. The Respondent opposed through Grounds of Opposition dated 21st March 2013, arguing the application was incompetent, failed the requirements of Rule 32(1)(a)-(e) of the Industrial Court (Procedure) Rules, and was brought after inordinate delay. The parties elected disposal by written submissions filed in July 2013. The court framed three issues: compliance with Rule 32(1), inordinate delay, and the interest of justice. On the first, it held that the claimants' allegation that their advocate omitted material particulars of their six years of service amounted to lack of due diligence, which Rule 32(1)(a) does not condone. On error apparent on the face of the record, the court applied the authorities that such an error must be self-evident and admit of no two opinions, and found the issues raised contentious and already canvassed and determined in the award. On delay, it held certified proceedings are not a prerequisite for review, so the application filed over a year after the award was inordinately delayed. The application was dismissed with costs to the respondent on 20th December 2013, presided over by D.K. Njagi Marete, Judge.

Key legal issues

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01

Whether new and important matter was discovered satisfying Rule 32(1)(a)

Holding

The ground fails because the omission was the advocate's lack of due diligence, not genuine discovery of new evidence

Reasoning

Rule 32(1)(a) allows review for discovery of new and important matter only where, with due diligence, it could not have been produced at the time of the award. Here the claimants attributed the omission of service-period particulars to their advocate's oversight, which is lack of due diligence and not a condoned ground for review.

p. 2
02

Whether there is an error apparent on the face of the record

Holding

No error apparent; the dates of employment were addressed in the award and the issues raised are contentious matters admitting of two opinions

Reasoning

The court applied the settled test that an error apparent on the face of the record must stare one in the face and admit of no two opinions. The employment dates were canvassed and determined in the award; the matters now raised are contentious and require elaborate reasoning, which cannot ground a review.

p. 3
03

Whether the applicants were guilty of inordinate delay

Holding

Yes; the application was filed more than one year after the award, and certified proceedings are not a prerequisite for review under the Industrial Court Procedure Rules

Reasoning

The court held that obtaining certified typed proceedings is not a requirement under the Industrial Court Procedure Rules for seeking review of an award. Consequently, the explanation that the application was filed promptly upon receipt of proceedings did not excuse the delay of over one year since delivery of the award.

p. 3

Legal principles established

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  • Discovery of new evidence as a ground for review is conditional on due diligence; an advocate's omission of material particulars is lack of due diligence and cannot ground a review
  • An error apparent on the face of the record must be self-evident and not require elaborate argument; a merely erroneous decision is not a ground for review
  • Review is not an avenue for parties to fill gaps left during hearing through negligence or inadvertence

Court orders

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  1. 1.The application for review is dismissed
  2. 2.Costs of the application awarded to the Respondent

Authorities

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Legislation

  • Industrial Court (Procedure) Rules, 2010Rule 32(1)(a)(b)(c)(d) & (e)
  • Industrial Court ActSection 12(1)
  • Constitution of KenyaArticle 162(2)

Cases cited (4)

  • Benson Benard Mbuchu Gichuki Versus Kenneth Kiagiri Mwangi & another
    High Court at Nairobi Civil Suit 3729 of 1991
  • Kishor Kumar Dhanji V Ndeffo Limited & 4 others
    [2011] eKLR, High Court at Nakuru Civil Case 170 of 2009
  • Nyamogo and Nyamogo Advocates Vs. Kago
    (2001) 1EA 173
  • National Bank of Kenya Vs. Ndungu Njau
    Civil Appeal No. 211 of 1996
Jurisdiction invoked
Section 12(1) of the Industrial Court Act; Article 162(2) of the Constitution

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Stephen Omboga And 9 others v Spin Knit Ltd [2013] KEELRC 971 (KLR)", Case Analysis (2013). Notice of Motion dated 19th July, 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/971/eng@2013-12-20

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