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ELRCDismissedNot stated in the judgment· [2015] KEELRC 1381 (KLR)

Daniel Okoth v Kenya National Commission on Human Rights [2015] KEELRC 1381 (KLR)

Industrial Court of Kenya (Employment and Labour Relations Court)
25 February 2015
DMD.K. Njagi MareteMMMonica W. Mbaru
1,633 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The claimant applied by notice of motion dated 3rd February 2014 seeking review or, in the alternative, setting aside of the Industrial Court's judgment of 20th December 2013, which had dismissed his claim and awarded the respondent 60 per cent of its counter-claim, together with a stay of execution of that decree. The application, brought under Rule 32 of the Industrial Court (Procedure) Rules, 2010, was premised on the assertion that the judge had not considered the claimant's written submissions and his defence to the counter-claim, which though filed and served were missing from the court record, and that this constituted an error apparent on the face of the record. The respondent opposed through grounds of opposition, arguing that the claimant was guilty of unreasonable delay in filing and serving the application; that missing written submissions do not constitute an error on the face of the record since submissions merely elucidate pleadings; that the proper remedy for a party aggrieved by the substance of a judgment is an appeal, not a review; and that no sufficient reason under Rule 32 had been shown. Counsel relied on the Supreme Court of India's decision in ACIT v. Saurashtra Kutch Stock Exchange Ltd on the meaning of an error apparent on the face of the record. The court, disposing of the matter by written submissions, agreed with the respondent, holding that the absence of the claimant's written submissions was not of itself an error apparent on the face of the record, and that the application was not properly grounded on Rule 32 at all. The application was dismissed with costs to the respondent on 25th February 2015.

Key legal issues

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01

Whether the non-traceability of the claimant's written submissions and defence to counter-claim amounts to an error apparent on the face of the record under Rule 32(1)

Holding

It does not; written submissions do not stand alone but merely elucidate a party's pleadings, and the missing documents did not render the judgment erroneous

Reasoning

The court associated itself with the respondent's submissions, holding that written submissions merely elucidate pleadings and their absence from the record cannot constitute a self-evident error. The judgment's intimations about the missing defence to the counter-claim were a comment that the claimant failed to support his case, not a finding that no defence existed. The proper remedy for a party aggrieved by the substance of a judgment is an appeal, not review.

p. 3
02

Whether the application was properly grounded on Rule 32(1) and Rule 32(5) (any other sufficient reason) of the Industrial Court (Procedure) Rules, 2010

Holding

It was not; the grounds cited did not fall within Rule 32 at all

Reasoning

The court found the application did not appropriately ground itself on Rule 32, nor was it based on or related to Rule 32(5), the catch-all sufficient-reason ground. The grounds advanced by the applicant did not meet the golden rule of an error on the face of the record. The claimant's application was therefore an attempt at a second bite of the cherry and was dismissed with costs.

p. 3

Legal principles established

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  • The absence of a party's written submissions from the court record is not of itself an error apparent on the face of the record justifying review, because written submissions merely elucidate the pleadings
  • An error apparent on the face of the record must be manifest and self-evident, requiring no elaborate argument or examination of evidence to establish

Court orders

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  1. 1.The claimant's application for review of the judgment of 20th December 2013 is dismissed
  2. 2.Costs of the application awarded to the respondent

Authorities

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Legislation

  • Industrial Court (Procedure) Rules, 2010Rule 32(1)(a)-(e), (2), (3), (4), (5), (6) and (7)

Cases cited (1)

  • ACIT v. Saurashtra Kutch Stock Exchange Ltd
Jurisdiction invoked
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, "Daniel Okoth v Kenya National Commission on Human Rights [2015] KEELRC 1381 (KLR)", Case Analysis (2015). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1381/eng@2015-02-25

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