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ELRCDismissedNot stated in judgment· [2015] KEELRC 1406 (KLR)

Athumani Lali v Nyali International Beach Hotel [2015] KEELRC 1406 (KLR)

Employment and Labour Relations Court
23 February 2015
274 words in judgment
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The bottom line

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Kenya's Employment Court refused to revive a struck-out employment claim, ruling that disagreements with a judge's legal reasoning must be appealed, not reviewed.

What this practically means

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Executive summary

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By a ruling dated 15th December 2014, the Employment and Labour Relations Court at Mombasa struck out the Claimant's claim on the ground that it was filed by an unqualified person, and was therefore incompetent, with costs to the Respondent. Through the firm of Nyamai and Associates, an application dated 4th February 2015 sought review and setting aside of that ruling. The Respondent's counsel, Mr. Otieno, raised a Preliminary Objection to the application. The court, per James Rika, J, found that there were no new matters of fact and no change in the law since 15th December 2014 warranting a revisit of the ruling; that the question of representation is a fundamental issue of law properly raised by preliminary objection; and that any misapprehension of the law by the court is not a ground for review - the proper recourse being an appeal to the Court of Appeal. The court directed Mr. Nyamai and Mr. Athumani Lali to pursue their appellate rather than review option, indicating that if the Court of Appeal found Mr. Nyamai could legally represent Mr. Lali, the court would grant him audience. The Preliminary Objection was upheld, the application dated 4th February 2015 was dismissed with costs to the Respondent, and the orders of 15th December 2014 were ordered to stand. Judgment dated and delivered at Mombasa on 23rd February 2015.

Key legal issues

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01

Availability of review where the complaint is misapprehension of the law

Holding

Misapprehension of the law is not a ground for review; appeal is the proper remedy

Reasoning

The court held that review jurisdiction is not an avenue to relitigate errors of law. Since no new facts had arisen and the law had not changed since the ruling of 15th December 2014, there was no basis for revisiting the decision. A party who believes the court misapprehended the law must pursue an appeal, not a review.

p. 1
02

Competence of the claim as filed through an unqualified representative

Holding

Representation is a fundamental issue of law properly raised by preliminary objection; the claim was incompetent as filed by an unqualified person

Reasoning

The court reaffirmed its ruling of 15th December 2014 striking out the claim filed by an unqualified person. The question of representation is a fundamental issue of law that may properly be raised by preliminary objection, and the court indicated it would only grant Mr. Nyamai audience if the Court of Appeal found he could legally represent Mr. Lali.

p. 1

Legal principles established

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  • An alleged misapprehension of the law by the court is not a ground for review; the proper recourse is an appeal to the Court of Appeal
  • Review requires new matters of fact or a change in the law

Court orders

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  1. 1.Preliminary Objection upheld
  2. 2.Application dated 4th February 2015 dismissed with costs to the Respondent
  3. 3.Orders of the Court dated 15th December 2014 to stand
Jurisdiction invoked
Not stated in judgment (inherent/review jurisdiction of the Employment and Labour Relations Court)

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, "Athumani Lali v Nyali International Beach Hotel [2015] KEELRC 1406 (KLR)", Case Analysis (2015). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1406/eng@2015-02-23

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