Republic v Retirements Benefits Appeal Tribunal & another; Retirement Benefits Authority, Boniface Mariga and 948 others, Gideon Mburu Ng’ang’a and 176 others & Ben Oulo and 135 others (Interested Parties) Ex Parte Applicant Board of Trustees Teleposta Pension Scheme [2019] KEELRC 1464 (KLR)
The bottom line
#Kenya's Employment Court ruled that retirees who had already appealed a decision could not use review as a second route to overturn it.
What this practically means
#Executive summary
#Key legal issues
#Whether the application for review met the grounds under Rule 33(1) of the ELRC (Procedure) Rules, 2016
The application failed; the grounds raised (perceived error about the interested parties' role, costs order against elderly retirees, right to counsel of choice) do not constitute reviewable grounds
The court set out the four grounds for review under Rule 33(1): discovery of new and important matter, error apparent on the face of the record, clarification, or any other sufficient reason. Applying Martha Wambui v Irene Wanjiru Mwangi, the court held that the applicants' complaints were mere grievances or grounds of appeal, not errors apparent on the face of the record, not fresh evidence, and not seeking clarification.
Whether a pending appeal bars an application for review of the same decision
Yes - the existence of a filed appeal against the decision of Nyamweya J. precluded review
The court noted that an appeal had been filed against the very decision sought to be reviewed. Under the review framework, a review is available only where no appeal has been preferred or lies. The court also observed that the grievances raised could adequately be pursued in the pending appeal.
Whether procedural non-compliance with Rule 33(3) defeated the application
Yes - the ruling sought to be reviewed was not attached to the application as required
Rule 33(3) requires that a copy of the judgment, decree, ruling or order to be reviewed be filed with the application. The applicants did not attach the order or ruling of 7th May 2018 sought to be reviewed, which independently warranted dismissal.
Legal principles established
#- A review may not be sought where an appeal has already been preferred against the decision sought to be reviewed
- An application for review must attach a copy of the decree, order, judgment or ruling sought to be reviewed, as required by Rule 33(3)
- Grounds that do not constitute error on the face of the record, fresh evidence, clarification, or any other sufficient reason cannot sustain a review
Court orders
#- 1.The Notice of Motion dated 25th June 2018 seeking review and setting aside of the orders of 7th May 2018, enjoinment, and admission of the Notice of Change of Advocates is dismissed
- Jurisdiction invoked
- Rule 33 of the Employment and Labour Relations Court (Procedure) Rules, 2016; Sections 80 and 3A of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Retirements Benefits Appeal Tribunal & another; Retirement Benefits Authority, Boniface Mariga and 948 others, Gideon Mburu Ng’ang’a and 176 others & Ben Oulo and 135 others (Interested Parties) Ex Parte Applicant Board of Trustees Teleposta Pension Scheme [2019] KEELRC 1464 (KLR)", Case Analysis (2019). Judicial Review Application No. 141 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1464/eng@2019-05-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.