Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCDismissedCause No. 473 of 2015· [2018] KEELRC 676 (KLR)

Anderson Makaya v Premier Industries Limited [2018] KEELRC 676 (KLR)

Employment and Labour Relations Court
9 November 2018
RSRadido Stephen
471 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~2 min to read original · ~4 min brief

The bottom line

#

A Kenyan court confirmed you cannot appeal and seek review of the same decision at the same time — you must choose one path.

What this practically means

#

Executive summary

#
This ruling of the Employment and Labour Relations Court at Nairobi (Radido J) concerns Cause No. 473 of 2015, an employment claim by Anderson Makaya against Premier Industries Limited. The Cause was dismissed on 8 February 2018 for non-attendance when called out for hearing, the hearing date having been fixed in the presence of the Claimant's advocate. Mwaniki Njuguna & Co. Advocates then filed an application on 28 February 2018 seeking leave to come on record and to set aside the dismissal; that application was dismissed in a considered ruling on 19 April 2018, and a Notice of Appeal was filed. The Claimant, through new advocates, Gakoi Maina & Co., filed a further application on 2 July 2018 seeking review of the order dismissing the 28 February 2018 application. The Court held that review jurisdiction was unavailable because the Claimant had already lodged a Notice of Appeal, relying on Orero v Seko and Kisya v Attorney General, which establish that review is only available to a party who is not appealing, and on Section 80 of the Civil Procedure Act. The Court further noted the Claimant's failure to disclose his earlier unsuccessful attempt to challenge the dismissal through different advocates, and held that even on the merits the grounds advanced, relating to failure to attend the hearing, did not sufficiently justify review. The application of 2 July 2018 was dismissed with costs to the Respondent.

Key legal issues

#
01

Availability of review where a Notice of Appeal has been filed

Holding

A party who has lodged a Notice of Appeal cannot invoke the review jurisdiction; the two processes are parallel and cannot be pursued simultaneously over the same decision

Reasoning

The Court relied on Orero v Seko and Kisya v Attorney General, which hold that review is reserved for parties who are not appealing. The Claimant had filed a Notice of Appeal on 11 April 2018 and then sought review on 2 July 2018, thereby pursuing two parallel legal processes over the same dismissal, which the law does not permit.

p. 1
02

Non-disclosure of prior unsuccessful challenge through other advocates

Holding

The Claimant's failure to disclose on the face of the motion or in the supporting affidavit that he had previously briefed another firm to challenge the dismissal, unsuccessfully, weighed against him

Reasoning

The Court noted that the Claimant was attempting to challenge the merits of the 19 April 2018 ruling without disclosing that he had earlier instructed Mwaniki Njuguna & Co. Advocates to challenge the dismissal, which attempt had failed. This lack of candour independently undermined the application.

p. 1

Legal principles established

#
  • The review jurisdiction is only available to a party who is not appealing; a party who has filed a Notice of Appeal cannot apply for review

Court orders

#
  1. 1.The application of 2 July 2018 is dismissed with costs to the Respondent

Authorities

#

Legislation

  • Civil Procedure ActSection 80

Cases cited (2)

  • Orero v Seko
    (1984) KLR 238
  • Kisya v Attorney General
    (1986) eKLR
Jurisdiction invoked
Review jurisdiction under Section 80 of the Civil Procedure Act as applicable to the Employment and Labour Relations Court

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.

Cite this brief

#

Cite this brief

Caselaw, "Anderson Makaya v Premier Industries Limited [2018] KEELRC 676 (KLR)", Case Analysis (2018). Cause No. 473 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/676/eng@2018-11-09

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