Tanui v Chief Defence Forces & 2 others (Petition 153 of 2018) [2020] KEELRC 26 (KLR)
The bottom line
#A Kenyan employment court dismissed a former soldier's attempt to have his lost case reconsidered, confirming that disagreements with a judge's findings belong in an appeal, not a review.
What this practically means
#Executive summary
#Key legal issues
#Whether an application for review grounded on the wrong statutory provision is incompetent
The application is not incompetent merely because it invoked the wrong provision of law; both parties cited authority supporting this position and the court proceeded to determine the application on its merits.
The court adopted Gitau v Muriuki, holding that where a party's invocation of a wrong provision is not in bad faith and causes no prejudice, the application will not be dismissed on that account alone. The applicant's rejoinder invoking substantive justice under Article 159(2)(d) reinforced the point. The court concurred fully with this precedent and moved to the merits.
Whether the applicant established an error apparent on the face of the record and other sufficient reasons for review under Rule 33 of the ELRC (Procedure) Rules, 2016
The applicant did not meet the threshold for review; the complaint that the court failed to consider his alibi evidence was a grievance with the court's findings on evidence, which lies on appeal, not review.
The judge stated that he had carefully considered all the evidence, including the applicant's passport copies, and made a finding that he did not discharge the burden of proving he was away during the fuel loss. Applying the Nyamogo & Nyamogo test, a possible view adopted by the court is not an error apparent on the face of the record; a mere erroneous decision is a ground for appeal, not review. Entertaining the review would breach the functus officio doctrine.
Legal principles established
#- A court will not dismiss an application solely because it is grounded on the wrong provision of law, provided the invocation is not in bad faith and causes no injury or prejudice.
- An appeal lies for an error of judgment while an error apparent on the face of the record is the subject for review; a possible view adopted by the court is not an error apparent on the face of the record.
- A party cannot use a review application to re-open a decided suit and re-examine evidence, as the court would then sit on appeal over its own judgment contrary to the doctrine of functus officio.
Court orders
#- 1.The application for review is dismissed with no order as to costs
- Jurisdiction invoked
- Section 16 of the Employment and Labour Relations Court Act and Rule 33 of the Employment and Labour Relations Court (Procedure) Rules, 2016 (review of the Court's own judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Tanui v Chief Defence Forces & 2 others (Petition 153 of 2018) [2020] KEELRC 26 (KLR)", Case Analysis (2020). Notice of Motion dated 15th January 2020 (arising from Petition dated 28th December 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/26/eng@2020-12-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.