Stephen Omboga And 9 others v Spin Knit Ltd [2013] KEELRC 971 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether new and important matter was discovered satisfying Rule 32(1)(a)
The ground fails because the omission was the advocate's lack of due diligence, not genuine discovery of new evidence
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.
Whether there is an error apparent on the face of the record
No error apparent; the dates of employment were addressed in the award and the issues raised are contentious matters admitting of two opinions
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.
Whether the applicants were guilty of inordinate delay
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
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.
Legal principles established
#- 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
#- 1.The application for review is dismissed
- 2.Costs of the application awarded to the Respondent
- Jurisdiction invoked
- Section 12(1) of the Industrial Court Act; Article 162(2) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kenya Airways Pilots Association v Kenya Airways Limited [2016] KEELRC 1547 (KLR)[2016] KEELRC 1547 (KLR)25 Feb 2016
Cite this brief
#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.