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ELRCDismissedNot stated on the face of the extract (Industrial Court Cause; application dated 4th December 2014)· [2015] KEELRC 1607 (KLR)

Enoch Sasia & another v Attorney General & 2 others [2015] KEELRC 1607 (KLR)

Industrial Court of Kenya (now Employment and Labour Relations Court)
25 May 2015
3,336 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The respondents (State parties represented by the Attorney General) filed a notice of motion dated 4th December 2014 under Rule 32 of the Industrial Court (Procedure) Rules and Articles 50 and 159 of the Constitution seeking to set aside and/or review the judgment delivered on 18th November 2014, to set aside the orders of 6th October 2014, and to be allowed to cross-examine the claimants' witnesses and put their case forward. They blamed counsel's absence in other courts, traffic, a missing file and alleged lack of notice. The claimants, Maj. Gen. (RTD.) Enoch Sasia and Lt. Col. Barnabas Rono, opposed the application as an appeal disguised as review, asserting the hearing date was taken by consent, service of the judgment notice was proved, and the respondents were dilatory. The court framed four issues: review/set aside of the judgment, setting aside the 6th October 2014 orders, recall of the claimants for cross-examination, and costs. It held that Rule 32 review requires discovery of new matter, error apparent on the face of the record, or other sufficient reason, none of which was established; that the respondents and their counsel knew of the hearing dates and were absent through their own conduct; and that Article 159(2)(d) does not displace rules of procedure. The application was dismissed in its entirety with costs to the claimants on 25th May 2015.

Key legal issues

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01

Whether the court should review or set aside its judgment of 18th November 2014 under Rule 32 of the Industrial Court (Procedure) Rules

Holding

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.

Reasoning

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.

p. 5
02

Whether the judgment and orders of 6th October 2014 should be set aside and the claimants recalled for cross-examination

Holding

No: the respondents and their counsel were aware of the hearing dates, were absent, and their conduct disentitled them to the discretionary relief.

Reasoning

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.

p. 5
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Whether Articles 50 and 159 of the Constitution override the rules of procedure

Holding

No: Article 159(2)(d)'s command against undue regard to technicalities does not remove the operation of rules of procedure established by law.

Reasoning

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.

p. 6

Legal principles established

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  • 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

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  1. 1.The application dated 4th December 2014 is dismissed in its entirety
  2. 2.Costs to the claimants

Authorities

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Legislation

  • Industrial Court (Procedure) RulesRule 32
  • Industrial Court ActSection 16; Section 12
  • Constitution of Kenya, 2010Articles 50, 159(2)(d)
  • Civil Procedure ActNot specified

Cases cited (6)

  • Pithon Maina versus Thuku Mugiria
    [1983] eKLR
  • Kenya Union of Commercial Food and Allied Workers versus Pembe Flour Mills Limited
    Cause No. 971 of 2011
  • Kiliopa Omukuba Okutoyi versus Telkom Kenya Ltd
    Cause No. 341 of 2010
  • Michael Njai versus Juan Torres and Another
    Cause No. 1279 of 2013
  • Humphrey Nyagoe Makori versus Kenya Ports Authority
    Misc. Application No. 6 of 2012
  • Kenya Union of Domestic Hotels, Educational Institutions, and Hospitals & Allied Workers (KUDHEIHA) versus Nairobi Club
    Cause No. 77(N) of 2009
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

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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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.