Stephen Mbugua Chege v Nairobi City Water & Sewarage Company [2019] KEELRC 2075 (KLR)
The bottom line
#You cannot ask a Kenyan court to review its own ruling while you have already appealed that same ruling to a higher court.
What this practically means
#Executive summary
#Key legal issues
#Competency of review where an appeal is pending
The review application failed because the applicant had already filed a notice of appeal against the ruling sought to be reviewed.
Rule 33 review lies only in respect of an order or decree for which an appeal would lie but has not been preferred. The notice of appeal was dated 13.11.2017 and filed on 15.11.2017, long before the review application of 27.06.2018. The court therefore held the application was filed in circumstances where an appeal had been preferred and must fail.
Whether the county government appointment was a new and important matter or material non-disclosure
No - the appointment postdated the direction of 25.09.2017 to determine the application by written submissions and did not exist at the hearing.
The court found that although recruitment may have been underway during the hearing, the appointment approved on 06.11.2017 could not attract blame for non-disclosure since submissions were directed on 25.09.2017. The material did not exist at the relevant time and, in any event, the applicant did not show it would have impacted the outcome. Other rule 33 grounds were also not established.
Nature of the application - review versus satisfaction of decree
The application was substantially one for review and not for satisfaction of the decree, so the court would not examine the parties' rights and obligations under the ruling.
The applicant had urged the application as though it sought satisfaction of the orders of 13.11.2017. The court held it was squarely a review application, not one for execution or settlement of matters about satisfaction of the decree, and therefore declined to delve into the parties' rights, obligations or liabilities arising from the ruling.
Whether the county employment could justify review as a sufficient reason
It could not; it might found a new cause of action or an explanation on satisfaction of the decree, but not a variation of the ruling.
The court reasoned that the county employment does not impeach the ruling of 13.11.2017 in any material respect as at the time it was made. It posed the test of whether the matter would validly be urged before the Court of Appeal to challenge the ruling, answered negatively, and concluded it cannot justify review.
Legal principles established
#- An application for review under rule 33 cannot be brought where an appeal has already been preferred against the order sought to be reviewed
- A matter that did not exist at the time of the hearing cannot constitute a new and important matter for review, and a party cannot be guilty of non-disclosure of a fact that arose after submissions were directed
- The discretionary power of review under section 16 of the ELRC Act must be exercised only according to the criteria in rule 33
Court orders
#- 1.The application filed on 27.06.2018 is dismissed with costs
- On appeal from
- Court of Appeal
- Application for stay of execution pending (number not stated)
- Jurisdiction invoked
- Rule 33 of the Employment and Labour Relations Court (Procedure) Rules, 2016; section 16 of the Employment and Labour Relations Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Stephen Mbugua Chege v Nairobi City Water & Sewarage Company [2019] KEELRC 2075 (KLR)", Case Analysis (2019). Cause No 1726 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2075/eng@2019-03-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.