Alex Toya Indasio v Mini Bakeries (Nrb) Ltd [2014] KEELRC 1367 (KLR)
The bottom line
#A Kenyan employment court refused to reopen its judgment over unpaid service pay, ruling that complaints about missed issues belong on appeal, not review.
What this practically means
#Executive summary
#Key legal issues
#Whether failure to consider the service pay issue was an error apparent on the face of the record
No - non-consideration of an issue arising from the pleadings is a ground of appeal, not review
The court found that the claimant's prayer for service pay arose on the pleadings and was implicated by the joinder on employment status, but the court's failure to determine it could not be characterised as an error apparent on the face of the record. Acceding to review would amount to the judge second-guessing a peer court's judgment or sitting on appeal. The alleged failure to give reasons amounted to an alleged misapprehension of the law, curable only on appeal.
Whether section 35 of the Employment Act entitlement to service pay constituted sufficient reason for review
No - the scope of section 35(1)(c) read with section 35(5) cannot be determined on a review application
The court held it imprudent to interpret the extent or legal implications of section 35(1)(c) as read with section 35(5) under an application for review. The proper time and place to decide the reach of section 35(5) is when dealing with specific issues arising out of the pleadings, and any grievance that a statutory provision was not considered should be pursued on appeal.
Legal principles established
#- Where a court fails to determine an issue arising out of the pleadings, the proper remedy is an appeal, not review on the ground of error on the face of the record
- An alleged misapprehension of the law by the court is not a ground for review; it must be corrected on appeal unless the error is apparent on the face of the record
Court orders
#- 1.The review application is dismissed without an order as to costs
- Jurisdiction invoked
- Industrial Court (Procedure) Rules, 2010 - grounds for review of the Court's own judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Alex Toya Indasio v Mini Bakeries (Nrb) Ltd [2014] KEELRC 1367 (KLR)", Case Analysis (2014). Not stated in judgment (Industrial Cause; Statement of Claim filed 28 October 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/1367/eng@2014-10-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.