Kenya Union of Printing, Publishing, Paper Manufacturers and Allied Workers v Highland Paper Mills Limited [2018] KEELRC 2107 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the orders of 19th October 2017 should be reviewed for a mistake or error apparent on the face of the record under Rule 33(b) of the ELRC (Procedure) Rules, 2016
The application for review fails; no error apparent on the face of the record was demonstrated, as the trial judge correctly struck out the application and notice of appeal filed by an advocate not on record.
Rule 33(1) permits review on discovery of new matter, error apparent on the face of the record, need for clarification, or other sufficient reason. The applicant relied on Rule 33(b). However, the striking out was grounded on Order 9 Rule 9 of the Civil Procedure Rules, 2010, since M/s Nyairo & Co. Advocates were not on record. The applicant's own director conceded the irregularity and instructed new advocates. No grounds for review were therefore established, and no valid notice of appeal existed, rendering the stay question moot.
Whether an application for stay pending appeal could be entertained absent a valid notice of appeal
No; without a valid notice of appeal filed within the stipulated time, the question of stay pending appeal is moot and the application is not properly before the court.
The notice of appeal had been struck out on 19th October 2017 and was never validly reinstated or refiled. The fresh stay application was therefore made in the absence of any valid notice of appeal. The proper forum for reinstating the struck-out notice of appeal is the Court of Appeal, not the trial court by way of review. The application was consequently misconceived and amounted to an attempt to appeal through the back door.
Legal principles established
#- An application filed by an advocate not on record, contrary to Order 9 Rule 9 of the Civil Procedure Rules, 2010, is properly liable to be struck out, and this is not a mere technicality.
- A party aggrieved by a notice of appeal struck out for such irregularity ought to seek redress from the Court of Appeal, not by way of review before the trial court.
Court orders
#- 1.The application dated 11th December 2017 seeking review is dismissed
- 2.Costs awarded to the Claimant
- Jurisdiction invoked
- Rule 33(1) of the Employment and Labour Relations Court (Procedure) Rules, 2016 (review jurisdiction)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Union of Printing, Publishing, Paper Manufacturers and Allied Workers v Highland Paper Mills Limited [2018] KEELRC 2107 (KLR)", Case Analysis (2018). Not stated in the judgment excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2107/eng@2018-05-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.