Hezekiel Oira v Kenya Broadcasting Corporation & another [2014] KEELRC 802 (KLR)
The bottom line
#A Kenyan employment court confirmed that unhappy litigants must appeal, not seek review, but ordered the employer to issue a Certificate of Service.
What this practically means
#Executive summary
#Key legal issues
#Scope of the Industrial Court's power to review its own decisions
Review under Rule 32(1) lies only on discovery of new and important matter, error apparent on the face of the record, or breach of any written law; none was disclosed.
The Court examined Rule 32(1) of the Industrial Court (Procedure) Rules, 2010, which permits review on three grounds only. The Claimant's application specified no particular sub-rule. The Court found no new evidence, no error apparent on the face of the record and no breach of written law. The Claimant's real complaint was the Court's evaluation of evidence and conclusions drawn, which is appellate territory, not review.
Distinction between review and appeal
A party's dissatisfaction with the Court's evaluation of evidence belongs to an appeal, not a review; the two are alternative remedies.
Applying Nguruman Limited v Jan Bonde Nielsen & 2 Others, the Court held that review and appeal are alternative remedies. Since the Claimant's grounds attacked the Court's assessment of the evidence and the inferences drawn, they fell within the province of an appeal. Only the claim for a Certificate of Service, a matter of law not raised at trial, could be entertained.
Entitlement to a Certificate of Service
The Claimant is entitled to a Certificate of Service, which the Respondent was directed to issue.
The Court treated the request for a Certificate of Service as a matter of law which the Claimant had not raised at trial, and therefore capable of being addressed on review. The Respondent was directed to comply by issuing the certificate.
Legal principles established
#- An application for review and an appeal are intended to be alternative remedies; a party dissatisfied with a court's evaluation of evidence should appeal, not seek review.
Court orders
#- 1.The Respondent is directed to issue the Claimant a Certificate of Service
- 2.The rest of the Claimant's application for review fails/is dismissed
- 3.Each party to bear their own costs
- Jurisdiction invoked
- Section 16 of the Industrial Court Act, 2011 and Rule 32 of the Industrial Court (Procedure) Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Hezekiel Oira v Kenya Broadcasting Corporation & another [2014] KEELRC 802 (KLR)", Case Analysis (2014). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/802/eng@2014-02-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.