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ELRCDismissedNot stated in the excerpt· [2018] KEELRC 1101 (KLR)

James Nyangiye & others v Attorney General [2018] KEELRC 1101 (KLR)

Employment and Labour Relations Court
28 September 2018
MOMaureen Onyango
2,827 words in judgment
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The bottom line

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What this practically means

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Executive summary

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This ruling of the Employment and Labour Relations Court at Nairobi (Maureen Onyango J) determined two applications for review of a judgment on quantum delivered on 2nd June 2017 in a retrenchment matter originally filed as Nakuru HCCC No. 395 of 2001 (consolidated with Nairobi HCC No. 1649 of 2001). The first application, by Mirugi Kariuki & Company Advocates, sought review of the judgment to include additional claimants' names and an order that the respondent compute the amounts payable. The second, by Gordon Ogola, Kipkoech & Company Advocates, sought a stay of execution, review, and addition of inadvertently omitted names. Both applications premised on an alleged error on the face of the record. The court, empowered by Section 16 of the Employment and Labour Relations Court Act and Rule 33 of the ELRC (Procedure) Rules, 2016, held that no error existed: the claimant list had been jointly compiled by the parties and adopted by the court as effectively a consent, and the attached list of over 5,000 names exceeded the numbers in the suit. Further, Rule 33 review is only available to a party to the suit; non-parties cannot be joined through review to benefit from a concluded judgment. The applicants also failed to prove they were parties to the original suits, and the court lacked the pleadings to confirm this. Both applications were dismissed with each party bearing its own costs.

Key legal issues

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01

Whether the omission of names from the judgment on quantum constituted an error apparent on the face of the record

Holding

No error existed because the court merely adopted the list of claimants jointly prepared and presented by the parties, effectively a consent

Reasoning

The parties had agreed in the judgment of 4th February 2015 to file a full list/matrix of claimants. The list adopted was jointly compiled. The applications attached over 5,000 names allegedly omitted, which exceeds the numbers in the suit, making the claim implausible. Since the court adopted what the parties jointly presented, the applicants must meet the threshold for setting aside consent orders, which they did not satisfy.

p. 4
02

Whether non-parties can apply for review and be joined through review

Holding

Rule 33 contemplates review only by a person who was a party to the suit; a person cannot be enjoined to a concluded suit through review

Reasoning

Rule 33 permits a person aggrieved by a decree or order from which no appeal is preferred to apply for review, but such a person must be a party capable of appealing. The applicants seek joinder, which is a distinct mechanism. One cannot be joined so as to benefit from a judgment in a concluded suit.

p. 4

Legal principles established

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  • A consent order adopted by the court can only be set aside or varied on grounds such as fraud, collusion, or given without sufficient material facts
  • Only a party to a suit may apply for review; a non-party cannot be enjoined to a concluded suit by way of review

Court orders

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  1. 1.The applications dated 14th July 2017 and 24th July 2017 are dismissed
  2. 2.Each party shall bear its own costs
Jurisdiction invoked
Section 16 of the Employment and Labour Relations Court Act and Rule 33 of the Employment and Labour Relations Court (Procedure) Rules, 2016

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "James Nyangiye & others v Attorney General [2018] KEELRC 1101 (KLR)", Case Analysis (2018). Not stated in the excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1101/eng@2018-09-28

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