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ELRCDismissedNot stated in judgment· [2014] KEELRC 1156 (KLR)

Kenya Union Of Domestic Hotels,Educational Institutions,Hospitals & Allied Workers v Impala Club [2014] KEELRC 1156 (KLR)

Industrial Court of Kenya
3 April 2014
2,321 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 refused to reopen its earlier judgment, confirming that review only fixes clear errors, not outcomes you simply dislike.

What this practically means

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Executive summary

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The claimants applied on 20th June 2013 under section 16 of the Industrial Court Act and Rule 32 of the Industrial Court Procedure Rules for review of a judgment delivered on 20th March 2013 by Hon. Justice Stephen Radido dismissing their claim for salary arrears and other benefits based on a Collective Bargaining Agreement. The claimant sought review on the basis that documents concerning three grievants allegedly forced to retire for participating in the case, and their entitlement under a subsequent CBA, had been erroneously omitted from the record. The respondent opposed, contending that the documents were not new evidence, that the claimant as a union participant in CBA negotiations had knowledge of them, and that the application amounted to a fresh appeal or new trial. The court framed three issues: whether there was new and important matter not within the applicant's knowledge, whether there was a mistake, breach or need for clarification, and whether there was sufficient reason. Holding that review is not an appeal in disguise but lies only for patent error within the limits of Rule 32, the court found no error apparent on the face of the record. The unpleaded victimisation claim could only found a new cause of action, and incomplete pleadings were to be cured by amendment, not review. The application was dismissed with each party bearing their own costs.

Key legal issues

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01

Whether the grounds for review under Rule 32 were satisfied

Holding

The grounds were not satisfied; the documents were within the claimant's knowledge and no error apparent on the face of the record was shown

Reasoning

The court held that as a trade union party to CBA negotiations and registration, the claimant could not credibly claim ignorance of any subsequent CBA. The cause of action arose before filing in 2010 and any new facts should have been raised by amendment, not review. The victimisation of three grievants was never pleaded, so introducing it through review would create a new cause of action.

p. 4
02

Scope of the court's review jurisdiction

Holding

Review jurisdiction is limited and circumscribed by Rule 32; it is not a rehearing of an erroneous decision

Reasoning

The court undertook a judicial examination of the nature of review, distinguishing it from appeal. A review only lies for discovery of new and important matter, mistake or error apparent on the face of the record, breach of written law, need for clarification, or other sufficient reason. Elaborately going into evidence to reverse an order would amount to sitting in appeal without jurisdiction.

p. 3

Legal principles established

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  • Review is not an appeal in disguise; it lies only for patent error within the limited grounds of Rule 32 of the Industrial Court Procedure Rules
  • New issues or incomplete pleadings cannot be introduced through review; the remedy is amendment of pleadings or a fresh cause of action

Court orders

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  1. 1.The review application filed on 14th June 2013 is dismissed
  2. 2.Each party to bear their own costs

Authorities

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Legislation

  • Industrial Court ActSection 16
  • Industrial Court Procedure RulesRule 32

Cases cited (1)

  • Nduhiu Gitahi versus Waruguongo
    [1988] KLR 621
Jurisdiction invoked
Section 16 of the Industrial Court Act and Rule 32 of the Industrial Court Procedure Rules

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, "Kenya Union Of Domestic Hotels,Educational Institutions,Hospitals & Allied Workers v Impala Club [2014] KEELRC 1156 (KLR)", Case Analysis (2014). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/1156/eng@2014-04-03

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