Boniface Nzau Muia v Shengli Engineering Construction Company & another [2020] KEELRC 10 (KLR)
The bottom line
#A Kenyan employment court refused to review its judgment, ruling that losing a stay application and changing lawyers are not reasons to reopen a case.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the 2nd respondent's application dated 3rd September, 2020 meets the grounds for review under Rule 33 of the ELRC (Procedure) Rules, 2016
- 2.Whether there was discovery of new and important matter or evidence justifying review
- 3.Whether there is an error apparent on the face of the record warranting review
- 4.Whether a party who has pursued stay of execution and extension of time to file an appeal can thereafter seek review of the same judgment
- 5.Whether the application is an abuse of court process
Key legal issues
#Whether discovery of new and important matter was established
No new matter was outlined; counsel merely averred discovery without identifying it
The applicant's counsel averred discovery of new and important matters but did not specify what those matters were. Rule 33 requires the applicant to demonstrate, with particularity, the new matter or evidence that could not with due diligence have been produced at the time of the decree. A bare averment by counsel, without outlining the material allegedly discovered, falls short of the threshold for review under the ELRC Procedure Rules, 2016.
Whether there was an error apparent on the face of the record
The alleged failure to state which respondent was liable was not a self-evident error on the record
The applicant contended that paragraphs 13-17 of the judgment did not clearly identify which respondent was liable for the claimant's work injury. The court held that the grounds for review under Rule 33 must be clearly outlined and that an error apparent on the face of the record must be self-evident, not requiring elaborate argument or being a matter on which another judge might have taken a different view.
Whether the application was an abuse of court process
Yes - having pursued and lost an application for stay and extension of time to appeal, the 2nd respondent could not seek review of the same judgment
The respondents had already filed an application dated 8th March, 2019 seeking stay of execution and extension of time to file a Notice of Appeal, which was dismissed on 17th December, 2019. A party cannot exercise the right of appeal and simultaneously apply for review of the same judgment. Seeking review after that dismissal, two years post-judgment, invited the court to revisit a position already addressed and was an abuse of process.
Legal principles established
#- A review of court orders cannot proceed in tandem with an application for stay of execution following a Notice of Appeal or after a stay application has been dismissed
- Change of advocates after judgment does not constitute sufficient cause for review
- An error apparent on the face of the record must be self-evident and not require elaborate argument
Court orders
#- 1.The application dated 3rd September, 2020 is found to be in abuse of court process and is dismissed
- 2.Costs of the application awarded to the claimant
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court (Procedure) Rules, 2016, Rules 33(1)(d), 17 and 28
Relief refused
#Review, variation, setting aside or vacation of the judgment of 8th October, 2018 and decree of 17th January, 2019
No new and important matter or error apparent on the face of the record was outlined; change of advocates does not create good cause for review
Review, variation, setting aside or vacation of the ruling and orders of 17th December, 2019 dismissing the application dated 8th March, 2019 and declining stay of execution
The application amounts to an abuse of court process, inviting the court to revert to a position already addressed
Costs
Application dismissed with costs to the claimant
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
A review can therefore be allowed upon discovery of new and important matter or evidence which after the exercise of due diligence, was not within the knowledge of the applicant or could not be produced by him at the time when the decree was passed or the order made or; on account of some mistake or error apparent on the face of the record, or for any other sufficient reason and whatever the ground there is a requirement that the application has to be made without unreasonable delay.
It is not the change of advocates which creates good cause to necessitate a review of judgement or court orders.
Accordingly, application dated 3rd September, 2020 is found in abuse of court process and is hereby dismissed with costs to the claimant.
Litigation must come to an end somehow and it cannot be conducted on the basis of trial and error.
Issues in the judgment
#The judgment inconsistently dates the decree as 17th January, 2019 in places and '8 th January, 20119' elsewhere
The application prays for review of the judgment 'dated 8 th October, 2017' in one prayer while elsewhere it is 8th October, 2018
The judgment does not set out the case title or cause number of the underlying cause or this application
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Boniface Nzau Muia v Shengli Engineering Construction Company & another [2020] KEELRC 10 (KLR)", Case Analysis (2020). Not stated in the judgment extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/10/eng@2020-12-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.