Enoch Sasia & another v Attorney General & 2 others [2015] KEELRC 1607 (KLR)
The bottom line
#A Kenyan court refused to reopen a finished employment case, holding that missing a hearing through your own fault is no ground for review.
What this practically means
#Executive summary
#Key legal issues
#Whether the court should review or set aside its judgment of 18th November 2014 under Rule 32 of the Industrial Court (Procedure) Rules
The application failed to establish any of the Rule 32 grounds for review; no basis was laid to invite the court to change the judgment.
Rule 32 review applications must be founded on discovery of new and important matter, error apparent on the face of the record, or other sufficient reason. The court found the respondents identified none. A good ground of appeal is not a ground for review, and a misconstruction of the law does not suffice. The respondents' real complaint was counsel's conduct, which did not meet the review threshold.
Whether the judgment and orders of 6th October 2014 should be set aside and the claimants recalled for cross-examination
No: the respondents and their counsel were aware of the hearing dates, were absent, and their conduct disentitled them to the discretionary relief.
The hearing date of 6th October 2014 was taken by consent; counsel appeared late and then failed to attend at 2pm. Service of the notice for 18th November 2014 was proved by affidavit of service, unchallenged. Unlike the ex parte default situation in Pithon Mwangi, all procedures had been complied with. Odeny's own awareness that counsel was held in another court showed the respondents could have attended. The conduct of the applicant was central to the exercise of discretion.
Whether Articles 50 and 159 of the Constitution override the rules of procedure
No: Article 159(2)(d)'s command against undue regard to technicalities does not remove the operation of rules of procedure established by law.
The court held that rules of procedure exist for good cause and that justice is owed to both sides. Constitutional provisions cannot be cited to excuse failure to adhere to set procedures, especially by a legally represented party. The undue regard to technicalities doctrine does not displace specific statutory rules such as Rule 32 and the Industrial Court Act.
Legal principles established
#- An application for review must be grounded on the recognised principles: discovery of new and important matter or evidence, a mistake or error apparent on the face of the record, or any other sufficient reason.
- A good ground of appeal is not necessarily a good ground for review; a misconstruction of the law is not a sufficient reason for review.
- Article 159(2)(d) of the Constitution cannot be relied upon in the face of specific provisions of legislation or rules of procedure.
Court orders
#- 1.The application dated 4th December 2014 is dismissed in its entirety
- 2.Costs to the claimants
- Jurisdiction invoked
- Rule 32 of the Industrial Court (Procedure) Rules; section 16 of the Industrial Court Act; Articles 50 and 159 of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Titus Mutiso Mbindyo v Motor Boutique Limited [2020] KEELRC 1094 (KLR)[2020] KEELRC 1094 (KLR)15 May 2020
Cite this brief
#Cite this brief
Caselaw, "Enoch Sasia & another v Attorney General & 2 others [2015] KEELRC 1607 (KLR)", Case Analysis (2015). Not stated on the face of the extract (Industrial Court Cause; application dated 4th December 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1607/eng@2015-05-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.