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ELRCStruck OutNot stated in judgment· [2015] KEELRC 636 (KLR)

Shem Maingo v Kema (E A) Limited [2015] KEELRC 636 (KLR)

Industrial Court of Kenya
31 July 2015
LNLINNET NDOLO
643 words in judgment
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The bottom line

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A Kenyan employment court struck out an employer's attempt to revisit an unfair termination award, confirming that disagreeing with a ruling means appealing, not seeking review.

What this practically means

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Executive summary

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Following an award delivered on 11th May 2015 in favour of the Claimant totalling Kshs.1,974,655.00 (six months' salary for unfair termination, one month's salary in lieu of notice, salary for July 2012, and prorata leave for 2012), the Respondent filed an application for review on 3rd June 2015, taking issue with the adoption of Kshs.234,845.00 as the Claimant's monthly salary for purposes of computing the award. The Claimant raised a preliminary objection, arguing that the application was an appeal against the award disguised as a review, sought to re-open a concluded case, challenged the rationale of the decision, and amounted to an abuse of process. The parties agreed to dispose of the objection by written submissions. The Court held that its review powers are donated by Section 16 of the Industrial Court Act, 2011 and Rule 32 of the Industrial Court (Procedure) Rules, 2010, and are confined to discovery of new and important matter, error apparent on the face of the record, or breach of written law. Applying settled authority, the Court reiterated that an erroneous view of evidence or law, though a good ground of appeal, cannot found a review, and that a court on review must guard against sitting on appeal over its own decision. Any error in fixing the monthly salary would be an error in judgment which the Court had no power to correct on review. The preliminary objection was sustained, the Respondent's application was struck out with costs to the Claimant, and it was so ordered on 31st July 2015 in Nairobi.

Key legal issues

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01

Whether the application for review was a genuine review or an appeal disguised as a review

Holding

The application did not disclose any of the grounds for review under Rule 32; challenging the rationale of the award amounts to an appeal, which the Court has no jurisdiction to entertain over its own decision.

Reasoning

The Court's review powers derive from Section 16 of the Industrial Court Act, 2011 and Rule 32 of the Industrial Court (Procedure) Rules, 2010, which confine review to discovery of new and important matter, error apparent on the face of the record, or breach of written law. The Respondent disputed the correctness of the salary figure adopted, which is a challenge to the rationale of the decision. Disagreement with an erroneous view of evidence or law is a ground of appeal, not review. Accordingly the preliminary objection was sustained.

p. 2

Legal principles established

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  • An erroneous view of evidence or the law is a ground of appeal, not a ground of review; a court on review must not sit on appeal over its own decision.

Court orders

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  1. 1.The preliminary objection taken by the Claimant is sustained
  2. 2.The Respondent's application for review is struck out with costs to the Claimant
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, "Shem Maingo v Kema (E A) Limited [2015] KEELRC 636 (KLR)", Case Analysis (2015). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/636/eng@2015-07-31

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