Kenya National Private, Security Workers Union v Thomas Ochieng Alloyce [2015] KEELRC 1535 (KLR)
The bottom line
#A Kenyan court refused to revive a dismissed case where the union waited two years and relied on facts it already knew, so costs must be paid.
What this practically means
#Executive summary
#Key legal issues
#Whether the lapse of High Court Miscellaneous Application No. 335 of 2010 constituted new and important matter justifying review
No - the fact that the High Court application had lapsed was within the applicant's own knowledge and was not raised at the hearing, so it cannot found review
Rule 32 of the Industrial Court (Procedure) Rules permits review only on discovery of new and important matter not within the applicant's knowledge or which could not be produced at the time the order was made. The lapse of the High Court orders on 8th December 2011 was within the claimant's knowledge, and in any event the lapse was not the basis of the dismissal of 11th January 2011, which turned on the claimant's non-disclosure of the High Court proceedings and orders.
Whether the dismissal of 11th January 2011 was based on a mistake or error apparent on the face of the record
No - the court decided on the true facts before it, namely the claimant's non-disclosure of the High Court case and orders; the lapse of those orders was not the basis of the ruling
The ruling of 11th January 2011 dismissed the Cause because the claimant filed proceedings without disclosing the existence of the High Court proceedings and the orders already issued. Those were facts within the court's knowledge when it made the orders. An error apparent on the face of the record cannot be founded on facts not relied upon in the original decision.
Whether the two-year delay in filing the application for review was explained
No - the application was an afterthought filed only after the respondent filed his bill of costs for taxation
The Cause was dismissed on 11th January 2011 but the application for review was not filed until 21st August 2013, and only after the respondent demanded taxation of the costs awarded to him. The applicant offered no explanation for the delay, supporting the respondent's contention that the application was triggered by the taxation, not by any genuine grievance.
Legal principles established
#- Review on grounds of discovery of new and important matter requires that the matter or evidence was not within the applicant's knowledge and could not with due diligence have been produced at the time the order was made
- A court does not make a mistake or error apparent on the face of the record where it decides on the facts properly placed before it, even if further facts unknown to the court later emerge
Court orders
#- 1.The notice of motion dated 21st August 2013 is dismissed with costs
- 2.The matter to be placed before the Deputy Registrar within 7 days from the date of the ruling for fixing a date for taxation
- 3.The Deputy Registrar to include the respondent's costs of this application in the taxation
- Jurisdiction invoked
- Section 16 of the Industrial Court Act 2011 and Section 26 of the Labour Institutions Act; Rule 32 of the Industrial Court (Procedure) Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya National Private, Security Workers Union v Thomas Ochieng Alloyce [2015] KEELRC 1535 (KLR)", Case Analysis (2015). Not stated in the judgment (Cause dismissed on 11th January 2011; application dated 21st August 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1535/eng@2015-01-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.