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ELRCDismissedNot stated in extract (suit against Mini Bakeries; leave obtained in Misc. Appl. 16 of 2014)· [2019] KEELRC 1395 (KLR)

Kithure M’Mwendwa Nyaga v Teacher Service Commission [2019] KEELRC 1395 (KLR)

Employment and Labour Relations Court
14 June 2019
OMONESMUS N. MAKAU
1,268 words in judgment
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The bottom line

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A Kenyan employment court refused to reopen a lost case because the claimant never pleaded his extension-of-time permission in his original lawsuit.

What this practically means

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Executive summary

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The Claimant moved the Court by Notice of Motion dated 23.11.2018 seeking review and setting aside of the judgment of 2.11.2018, in which his suit had been dismissed as time barred. He argued there was an error apparent on the face of the record and discovery of important evidence, namely a leave order granted by Ndolo J on 31.3.2014 permitting the suit to be filed out of time, which he said was general knowledge to the parties and was never appealed. The respondent opposed, contending the application fell outside Rule 33 of the ELRC Procedure Rules, that the Court was functus officio and could not sit on appeal over its own judgment, and that merits-based complaints belong on appeal. The Court (Makau J) held it had jurisdiction under section 16 of the ELRC Act and Rule 33(1) to review its own orders, but that the applicant had failed to prove any review ground. The alleged discovery of important evidence failed because the applicant admitted he knew of the leave order before filing suit; Rule 33(1)(a) requires a new matter not within the applicant's knowledge even after due diligence. On the alleged error, the Court held that leave to file out of time does not bind the trial court unless pleaded, attached to the statement of claim and proved at trial. The Court also found it irregular that the Misc. Appl. 16 of 2014 file had been inserted into the court file after judgment, describing it as a collusion with Registry staff to misrepresent the record. The Notice of Motion was dismissed with costs.

Key legal issues

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01

Discovery of important evidence as a ground for review

Holding

Ground fails because the applicant admitted knowledge of the leave order before filing suit; it was not new evidence discovered after due diligence.

Reasoning

The applicant deposed that the limitation issue was not raised because leave to file out of time was general knowledge to all parties. That admission destroyed the claim of discovery: Rule 33(1)(a) requires a new and important matter not within the applicant's knowledge even after due diligence. The claimant was not diligent in bringing the leave order to the Court's attention or proving it was justified.

p. 2
02

Error apparent on the face of the record

Holding

No error apparent; the judgment was founded on pleadings, facts, law and submissions, and the leave order was neither pleaded nor proved. Any error of merits is for appeal, not review.

Reasoning

The leave order of Ndolo J of 31.3.2014 was never brought to the Court's attention before judgment, was not pleaded in the statement of claim and was never proved to be justified. The grant of leave does not bind the trial court unless pleaded, attached and proved. The insertion of the Misc. Appl. 16 of 2014 file into the court file after judgment was an irregularity/collusion and does not create an error on the face of the record.

p. 2

Legal principles established

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  • A party seeking review must prove the grounds in Rule 33(1); discovery of new evidence must be a matter not within the applicant's knowledge even after due diligence.
  • A grant of leave to file suit out of time does not bind the trial court unless pleaded, attached to the statement of claim and proved at trial.
  • A court cannot sit on appeal over its own judgment; errors on the merits are matters for appeal, not review.

Court orders

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  1. 1.The Notice of Motion dated 23.11.2018 is dismissed with costs

Authorities

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Legislation

  • Employment and Labour Relations Court Actsection 16
  • ELRC Procedure RulesRule 33(1), Rule 33(1)(a)

Cases cited (3)

  • Eastern and Southern Africa Development Bank Vs African Greer Fields Ltd & Others
    [2002] 2 EA
  • Alex Toya Indasio Vs Mini Bakeries (Nrb) Ltd
    [2014] eKLR
  • Boniface Mulandi Vs Ali Barbaours Care Restaurant
    [2017] eKLR
Jurisdiction invoked
Section 16 of the ELRC Act and Rule 33(1) of the ELRC Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kithure M’Mwendwa Nyaga v Teacher Service Commission [2019] KEELRC 1395 (KLR)", Case Analysis (2019). Not stated in extract (suit against Mini Bakeries; leave obtained in Misc. Appl. 16 of 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1395/eng@2019-06-14

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