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ELRCDismissedNotice of Motion dated 17th August 2018 (arising from claim before M.N. Nduma, Principal Judge)· [2019] KEELRC 779 (KLR)

Woi Samuel Chege Gitau and 283 others v Attorney General [2019] KEELRC 779 (KLR)

Employment and Labour Relations Court
18 September 2019
967 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court dismissed two police officers' bid to rejoin a group compensation claim, confirming review only works for clear errors, not appeals.

What this practically means

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Executive summary

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Corporal Peter Nashon Wambulwa and SSGT Joseph Gaichuru Chege, former Kenya Police employees, brought a Notice of Motion dated 17th August 2018 seeking review of orders said to have been made on 17th February 2015 removing them from a claim by 280 former police officers, and seeking reinstatement as claimants and beneficiaries of the judgment delivered in Nairobi on 22nd September 2017 by Principal Judge M.N. Nduma. They averred that Lt. Col. Peter Ngari Kagume inserted their names in his notice of withdrawal without their knowledge or consultation, that no application to withdraw them was served on them, and that no Civil Procedure Rules procedure was followed in removing them from the claim. The other claimants opposed, arguing res judicata under section 7 of the Civil Procedure Act based on Nairobi High Court Misc. No. 128 of 2006 (Justice Nyamu, 30th January 2009), incompetence, and that the Applicants had voluntarily withdrawn. The Attorney General opposed on the grounds that the court had become functus officio after judgment and that the applications were an afterthought. Justice Hellen Wasilwa observed that by a judgment dated 11th June 2018 she had set aside an earlier order allowing the Applicants' inclusion, and that she had not granted orders on 17th February 2015 as prayed. Finding no error apparent on the record, no new evidence and nothing requiring clarification under rule 33(1) of the ELRC (Procedure) Rules 2016, and noting that review cannot be used to make the court sit on appeal on its own orders, the court dismissed the application on 18th September 2019. No costs order appears in the disposition.

Key legal issues

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01

Whether grounds for review under rule 33(1) of the ELRC (Procedure) Rules 2016 were established

Holding

The application for review was not merited and was dismissed

Reasoning

The court examined the averments and found none of the statutory grounds for review existed. There was no error on record, no new evidence not previously before the court, and nothing requiring clarification. The proper remedy for a party dissatisfied with the court's own orders is an appeal to the Court of Appeal, not a review. The application was accordingly dismissed.

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02

Whether an order of 17th February 2015 excluding the Applicants existed capable of review

Holding

The court found it had not granted any orders on 17th February 2015 as prayed, so there was nothing to review

Reasoning

The court recalled that by its judgment dated 11th June 2018 it had set aside an earlier order allowing inclusion of the Applicants, and stated it had not granted any orders on 17th February 2015 as prayed by the Applicants which would warrant review.

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03

Whether the Applicants' names were irregularly removed from the claim by Lt. Col. Peter Ngari Kagume

Holding

The court did not make any finding on the merits of the withdrawal; it disposed of the matter purely on the absence of review grounds

Reasoning

Although the Applicants averred that their names were inserted in a notice of withdrawal without their knowledge and that no Civil Procedure Rules procedure was followed in removing them, the court did not adjudicate that dispute, resting its decision instead on the absence of rule 33(1) grounds and the impropriety of asking the court to sit on appeal on its own orders.

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Legal principles established

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  • Review may only issue upon an error apparent on the face of the record, discovery of new evidence, or a matter requiring clarification under rule 33(1) of the ELRC (Procedure) Rules 2016; a party aggrieved by a court's own orders must appeal, not seek review

Court orders

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  1. 1.The application for review was found not merited and was dismissed accordingly

Authorities

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Legislation

  • Civil Procedure Actsection 7
  • ELRC (Procedure) Rules 2016rule 33(1)
  • Civil Procedure Rules and Ordersnot specified

Cases cited (1)

  • Nairobi High Court Misc. No. 128 of 2006
Jurisdiction invoked
ELRC (Procedure) Rules 2016, rule 33(1) (review jurisdiction); Civil Procedure Act, section 7 cited by claimants

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, "Woi Samuel Chege Gitau and 283 others v Attorney General [2019] KEELRC 779 (KLR)", Case Analysis (2019). Notice of Motion dated 17th August 2018 (arising from claim before M.N. Nduma, Principal Judge). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/779/eng@2019-09-18

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