Kenneth Kipkemboi Settim & Jossy M Kioko v National Social Security Fund Board of Trustees [2018] KEELRC 121 (KLR)

Rule 33(1) permits review where there is discovery of new and important matter not within the applicant's knowledge despite due diligence, an error apparent on the face of the record, need for clarification, or any other sufficient reason. The Respondent argued and the Court accepted that none of these grounds was established. The claimant made no submission identifying any error, such as an incorrect date of cause of action, and nothing in the application sought clarification of any part of the judgment.

The claimants argued that the earlier ruling finding the matter not time barred was res judicata. The Court held that the preliminary objection was dismissed only because it was not a pure point of law, factual issues having to be ascertained from evidence. Having heard the facts, the Court ascertained that the matter was time barred, so the earlier ruling did not bar the later finding.

Relying on the Court of Appeal decision in Torgbor v Ojuok, which reaffirmed Supreme Court dicta that jurisdiction flows from the Constitution or legislation and cannot be assumed by interpretation, the Respondent maintained that a time-barred claim robs the Court of jurisdiction. The Court had found in the 30th May 2018 judgment that the claim, filed on 16.2.2011, exceeded the six-year limitation period running from the February 2009 dismissal, and nothing in the review application disturbed that finding.