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ELRCDismissedNot stated in the judgment (Employment and Labour Relations Court, Nyeri; application dated 6 March 2019)· [2019] KEELRC 1601 (KLR)

John Muriithi Muriuki v Ms Hazel Holmes & 5 others [2019] KEELRC 1601 (KLR)

Employment and Labour Relations Court
24 May 2019
NMNzioki wa Makau
781 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employment court refused to 'review' its own judgment, confirming that disagreements with a judge's findings must be appealed, not reviewed.

What this practically means

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Executive summary

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The Claimant/Applicant moved the Employment and Labour Relations Court at Nyeri by notice of motion dated 6 March 2019 seeking review of the court's judgment of 25 February 2019, which had awarded him differential pay for 9 months. He contended that he had acted as club manager for 12 months and that the award should therefore have covered a full year, relying on Republic v Public Procurement Administrative Review Board and National Bank of Kenya v Ndungu Njau to argue that the court could review its judgment for material errors apparent on its face. The Respondent opposed, maintaining that the matters raised were grounds of appeal, not review, and cited Stephen Wanyoike Kinuthia v Kariuki Marega and the Chelimo Plot Owners case on what constitutes an error apparent on the face of the record. The court, Nzioki wa Makau J, accepted jurisdiction under Rule 33 of the 2016 Rules but held that review does not lie for an erroneous conclusion of law or evidence, which are matters for appeal. Adopting the Chandrakhant Joshibhai Patel test, his Lordship held that an error apparent on the face of the record must be obvious and patent, such as an arithmetical error or a wrong date or place. The finding that the Claimant served for 9 months was a finding of fact drawn from his evidence, reviewable only on appeal. The application was dismissed with costs to the Respondent.

Key legal issues

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01

Whether the duration of the Claimant's service (9 months vs 12 months) is reviewable as an error apparent on the face of the record

Holding

It is not; the finding on duration was a finding of fact based on evidence and is a matter for appeal, not review

Reasoning

Rule 33 permits review for discovery of new matter, error apparent on the face of the record, clarification, or any other sufficient reason. The court held that review does not extend to erroneous conclusions of law or evidence. The judge, having found from the evidence that the Claimant acted for 9 months, held this was a finding of fact that could only be challenged on appeal. The application was therefore devoid of merit.

p. 1

Legal principles established

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  • An error apparent on the face of the record for purposes of review must be obvious and patent, such as an arithmetical error or a wrong date or place, and does not extend to matters requiring a long drawn process of reading on which there may be two opinions
  • An erroneous conclusion of law or evidence is not a ground for review but may be a good ground for appeal

Court orders

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  1. 1.The Claimant's notice of motion application dated 6 March 2019 seeking review of the judgment of 25 February 2019 is dismissed
  2. 2.Costs of the application awarded to the Respondent

Authorities

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Legislation

  • Employment and Labour Relations Court (Procedure) Rules, 2016Rule 33(1)

Cases cited (5)

  • Republic v Public Procurement Administrative Review Board & 2 Others
    [2018] eKLR
  • National Bank of Kenya v Ndungu Njau
    [1997] eKLR
  • Stephen Wanyoike Kinuthia (suing on behalf of John Marega (deceased) v Kariuki Marega & Another
    [2018] eKLR
  • Chelimo Plot Owners Welfare Group Owners & 288 Others v Langat Joel & 4 Others (sued as the Management Committee of Chelimo Squatters)
    [2018] eKLR
  • Chandrakhant Joshibhai Patel v R
    (2004) TLR, 218
Jurisdiction invoked
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, "John Muriithi Muriuki v Ms Hazel Holmes & 5 others [2019] KEELRC 1601 (KLR)", Case Analysis (2019). Not stated in the judgment (Employment and Labour Relations Court, Nyeri; application dated 6 March 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1601/eng@2019-05-24

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