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ELRCOtherNot stated in judgment (Employment and Labour Relations Cause)· [2020] KEELRC 200 (KLR)

Julie Kariuki v Dyer & Blair Investment Bank [2020] KEELRC 200 (KLR)

Employment and Labour Relations Court of Kenya
25 November 2020
RSRadido Stephen
1,033 words in judgment
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The bottom line

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A Kenyan employment court set aside its own Kshs 600,000 judgment because it ignored key evidence, ordering the whole case to be heard afresh.

What this practically means

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Executive summary

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The Court had, on 28 February 2020, found that Julie Kariuki (Claimant) was dismissed without valid and fair reasons and awarded her Kshs 600,000/-. The Respondent filed a Motion dated 1 April 2020 seeking review of that judgment on the ground of errors apparent on the face of the record: the Court had recorded that only one witness testified for the Respondent whereas two did, and had dismissed the Counterclaim on the basis that no evidence was led although the second witness had given evidence. The Claimant, having begun execution, opposed, arguing the applications were defective, brought after inordinate delay, and that the Court was functus officio, review being no substitute for appeal. The Respondent relied on Nyamogo & Nyamogo Advocates v Kogo and the Salat case on error apparent on the face of the record. The Court first addressed sequencing, holding the review Motion should be determined first as its outcome would render the stay of execution Motion academic. Applying the settled test (Muyodi v ICDC), the Court accepted that it had indeed failed to consider crucial evidence from the Respondent's second witness, which may have substantially influenced the outcome, amounting to a substantial procedural violation of the right to a fair hearing. However, it declined to review the judgment, holding that review would require re-examining the evidence and possibly varying the judgment, overstretching the review principle. Instead, it vacated and set aside the proceedings including the judgment and ordered the Cause to proceed to hearing de novo before any Judge at the Nairobi Court Station, with each party bearing its own costs.

Key legal issues

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01

Whether the alleged failure to consider the second witness's evidence constituted an error apparent on the face of the record justifying review

Holding

The Court accepted that it failed to consider crucial evidence, but held that rectifying it through review would overstretch the review principle; the proper course was to set aside the judgment and order a hearing de novo

Reasoning

The Court acknowledged the omission but reasoned that review would require re-examining the evidence and potentially varying the judgment, exceeding the review jurisdiction. Instead, invoking fair-hearing principles, it vacated the proceedings and judgment and directed a de novo hearing before any Judge in Nairobi.

p. 2
02

Sequencing of the review and stay of execution applications

Holding

The review Motion was to be determined first, as its outcome would render the stay application academic

Reasoning

The Court considered the record and prioritised the review Motion because findings on it would determine whether execution remained an issue at all, rendering any ruling on stay merely academic.

p. 1

Legal principles established

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  • An error apparent on the face of the record must be self-evident and not require elaborate argument; a different view on the evidence or an erroneous conclusion of law is not a ground for review
  • Failure by a court to consider evidence on record amounts to a substantial procedural violation of the right to a fair hearing and warrants setting aside the judgment for hearing de novo rather than review

Court orders

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  1. 1.The application for review of the judgment of 28 February 2020 is declined
  2. 2.The proceedings previously taken including the judgment are vacated and set aside on the basis that the failure to consider evidence on record amounted to a substantial procedural violation of the right to fair hearing
  3. 3.The Cause shall proceed to hearing de novo before any Judge in the Nairobi Court Station
  4. 4.Each party to bear own costs

Authorities

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Legislation

  • Applicable statutory framework on reviewGrounds of review (error apparent on the face of the record)

Cases cited (3)

  • Nyamogo & Nyamogo Advocates v Kogo
    (2001) EA 170
  • Republic v Cabinet Secretary for Interior & Co-Ordination of National Government ex parte Abulahi Said Salat
    (2019) eKLR
  • Muyodi vs. Industrial and Commercial Development Corporation & Ar
    (2006) 1 EA 243
Jurisdiction invoked
Review jurisdiction under the applicable statutory framework governing review of judgments (as referenced in the judgment); Employment and Labour Relations Court original jurisdiction

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, "Julie Kariuki v Dyer & Blair Investment Bank [2020] KEELRC 200 (KLR)", Case Analysis (2020). Not stated in judgment (Employment and Labour Relations Cause). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/200/eng@2020-11-25

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