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ELRCPartially AllowedNot stated in judgment· [2014] KEELRC 802 (KLR)

Hezekiel Oira v Kenya Broadcasting Corporation & another [2014] KEELRC 802 (KLR)

Industrial Court of Kenya (now Employment and Labour Relations Court)
19 February 2014
666 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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On 4th October 2013, the Industrial Court at Nairobi delivered an award in favour of the Claimant in the sum of Kshs. 5,742,410. The Claimant thereafter applied for review of the award on seven grounds, including entitlement to interest on the award from 23rd June 2010, a full month's salary for June 2010, various acting allowances for periods served as Deputy Managing Director and Acting Managing Director, re-tabulation of the Kshs. 64,467 awarded for acting allowances, and a Certificate of Service. The Respondent opposed, contending the issues had been fully canvassed at trial and that the application was an attempted appeal and an abuse of process. The Court identified its review powers as flowing from Section 16 of the Industrial Court Act, 2011 and Rule 32 of the Industrial Court (Procedure) Rules, 2010. Rule 32(1) permits review only on discovery of new and important matter or evidence, error apparent on the face of the record, or breach of any written law. The Court found that none of these grounds was disclosed: the Claimant's real grievance was the Court's evaluation of the evidence, which is a matter for appeal, review and appeal being alternative remedies as held in Nguruman Limited v Jan Bonde Nielsen & 2 Others. The Court allowed only the claim for a Certificate of Service, a matter of law not raised at trial, directing the Respondent to issue it, and dismissed the remainder of the application. Each party was ordered to bear its own costs.

Key legal issues

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01

Scope of the Industrial Court's power to review its own decisions

Holding

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.

Reasoning

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.

p. 2
02

Distinction between review and appeal

Holding

A party's dissatisfaction with the Court's evaluation of evidence belongs to an appeal, not a review; the two are alternative remedies.

Reasoning

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.

p. 2
03

Entitlement to a Certificate of Service

Holding

The Claimant is entitled to a Certificate of Service, which the Respondent was directed to issue.

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.The Respondent is directed to issue the Claimant a Certificate of Service
  2. 2.The rest of the Claimant's application for review fails/is dismissed
  3. 3.Each party to bear their own costs

Authorities

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Legislation

  • Industrial Court ActSection 16
  • Industrial Court (Procedure) RulesRule 32(1)

Cases cited (1)

  • Nguruman Limited Vs Jan Bonde Nielsen & 2 Others
    [2013] EKLR
Jurisdiction invoked
Section 16 of the Industrial Court Act, 2011 and Rule 32 of the Industrial Court (Procedure) Rules, 2010

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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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.