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ELRCDismissedCause No. 875 of 2012· [2015] KEELRC 672 (KLR)

Job K. Muriuki v Mada Hotels Limited [2015] KEELRC 672 (KLR)

Employment & Labour Relations Court
21 July 2015
NMNzioki wa Makau
1,247 words in judgment
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The bottom line

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A Kenyan employment court threw out a worker's attempt to revive his dismissed case because he used the wrong legal procedure and no new grounds justified a review.

What this practically means

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Executive summary

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This ruling of the Employment and Labour Relations Court at Nairobi (Nzioki wa Makau J) dismissed the Claimant's application dated 29th April 2015 seeking review of the Court's earlier decision dismissing his Notice of Motion seeking reinstatement of the suit. The Claimant, through Mrs. Kerio, argued that justice should be administered without undue regard to technicalities, invoking Article 159(2)(a) and (d) of the Constitution, Section 20 of the Industrial Court Act and Section 45(1) of the Civil Procedure Rules, and relying on authority that a mistake of counsel should not be visited on a litigant. The Respondent, through Mr. Ochwo, opposed, contending that reviews in this Court must be brought under Rule 32 of the Industrial Court (Procedure) Rules 2010, that the application lacked a supporting memorandum, that the Court could not sit on appeal over its own decision and was functus officio, and that the Claimant had lied to Court. The Court held that Rule 32 sets out the exclusive grounds for review - discovery of new and important matter, error apparent on the face of the record, breach of written law, need for clarification, or other sufficient reason - and that the Claimant had not brought his application within those boundaries. The Civil Procedure Act and Rules could apply only where there is a lacuna in the Court's own procedures. Adopting the Court of Appeal's guidance in National Bank of Kenya v Ndungu Njau, the Court found no grounds for review, held that it was functus officio following its ruling of 15th April 2015, and dismissed the application with costs to the Respondent.

Key legal issues

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01

Proper procedural basis for review in the Industrial Court

Holding

The review application failed because it was not brought under Rule 32 of the Industrial Court (Procedure) Rules 2010 and none of the Rule 32 grounds were satisfied

Reasoning

Rule 32 confines review to discovery of new and important matter, error apparent on the face of the record, breach of written law, need for clarification, or other sufficient reason. The Claimant instead invoked the Civil Procedure Rules and Article 159(2) on technicalities, which the Court held were far removed from the matter. The Civil Procedure Act applies only to fill lacunae in the Court's rules.

p. 2
02

Functus officio

Holding

Having pronounced its ruling on 15th April 2015 dismissing the earlier application, the Court was functus officio and could not sit on appeal over its own decision

Reasoning

The Respondent argued the Court could not sit on appeal over its own decision and was functus officio as regards the earlier application. The Court agreed, holding that its pronouncement of 15th April 2015 exhausted its jurisdiction and that the Claimant's reliance on technicality-based arguments did not reopen the matter.

Legal principles established

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  • Reviews in the Industrial Court must be brought under Rule 32 of the Industrial Court (Procedure) Rules 2010; the Civil Procedure Act and Rules apply only where there is a lacuna in the Court's own procedures
  • A review may only be granted to correct an error apparent on the face of the record; an erroneous conclusion of law is not a ground for review

Court orders

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  1. 1.The application dated 29th April 2015 seeking review is dismissed with costs to the Respondent
Jurisdiction invoked
Industrial Court (Procedure) Rules 2010, Rule 32; Industrial Court Act, Section 20

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, "Job K. Muriuki v Mada Hotels Limited [2015] KEELRC 672 (KLR)", Case Analysis (2015). Cause No. 875 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/672/eng@2015-07-21

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