David Wanyonyi v Attorney General,Chief of Defence Forces & Army Commander Kenya Army (Cause 40 of 2013) [2015] KEELRC 324 (KLR)
The bottom line
#A Kenyan court dismissed the Defence Forces' attempt to overturn an earlier employment judgment, ruling their arguments belonged in an appeal, not a review.
What this practically means
#Executive summary
#Key legal issues
#Whether review was available to a party with a pending appeal
Although the Court of Appeal authorities conflicted on whether review may be pursued while a notice of appeal is pending, the Court found it unnecessary to resolve the conflict because the Respondents had not made out a case for review
The Court noted conflicting Court of Appeal holdings: Yani Haryanto held review jurisdiction survives lodgment of a notice of appeal, while Orero v Seko and Kisya held the review remedy is unavailable to a party appealing. Since the review application was filed after the notice of appeal, the point was significant, but the Court declined to resolve the conflict, holding the grounds raised belonged to appeal, not review.
Whether the merits disclosed an error apparent on the face of the record
No; the contention that the judgment wrongly relied on section 5(2) of the Employment Act despite section 3 ousting its application to the military was a matter for appeal
The Respondents argued the judgment was anchored on section 5(2) of the Employment Act, 2007, which section 3 excluded from application to military members, amounting to an error on the face of the record. The Court held that whether discrimination should have been considered under the constitutional framework rather than the Employment Act was best resolved on appeal.
Whether the review application was res judicata / abuse of process
Effectively yes; the Respondents should have raised all grounds in the earlier stay application and the present motion was an afterthought
The Respondents had filed a stay application on 24 February 2015 which was dismissed on 17 April 2015. They ought to have been aware of the grounds now advanced in the review. Borrowing the principle in Yat Tung Investment Co Ltd v Dao Heng Bank Ltd, the Court held a party must place its whole case arising from the same circumstances before the court at once.
Legal principles established
#- A party must place its entire case arising out of the same circumstances before the court at once; issues that could have been raised in an earlier application cannot ground a subsequent review
- An application for review seeking to achieve what a party failed to achieve in an earlier dismissed application is an afterthought and unmerited
Court orders
#- 1.The Respondents' application filed in Court on 17 June 2015 seeking review/setting aside of the judgment of 17 October 2014 was dismissed
- 2.Costs of the application awarded to the Claimant
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over its own judgment under review jurisdiction
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "David Wanyonyi v Attorney General,Chief of Defence Forces & Army Commander Kenya Army (Cause 40 of 2013) [2015] KEELRC 324 (KLR)", Case Analysis (2015). Cause No. 401 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/324/eng@2015-11-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.