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ELRCDismissedNot stated in the judgment· [2020] KEELRC 211 (KLR)

Albert Yawa Katsenga v Kenya Revenue Authority [2020] KEELRC 211 (KLR)

Employment and Labour Relations Court
11 November 2020
HWHellen Wasilwa
1,714 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 dismissed a request to review its judgment, ruling that ignored submissions caused no unfairness because all evidence and law were considered.

What this practically means

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Executive summary

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The Applicant (Respondent in the main claim) moved the Court by Chamber Summons dated 10th August 2020 seeking review and setting aside of the judgment delivered on 28th May 2020, and an order that its submissions filed on 20th March 2020 be deemed properly on record. It explained that after filing the submissions, the court registry stopped receiving hard copies due to the Covid-19 pandemic, and its clerk emailed the submissions to addresses given by the Deputy Registrar, who acknowledged receipt. The Applicant relied on Section 32 of the Industrial Court Rules 2010 and argued that its right to be heard was infringed. The Claimant/Respondent opposed, arguing the application was brought under the wrong provisions (Section 16 of the ELRC Act and Rule 33 of the ELRC (Procedure) Rules 2016 being the correct ones), that it was filed 75 days after judgment with undue delay, and that the Applicant had fully exercised its right to be heard at trial. The Court framed its analysis under Rule 33(1) of the ELRC (Procedure) Rules 2016, which allows review for error apparent on the face of the record among other grounds. The Court accepted that the submissions were never on record when judgment was written, but held that it had considered all the evidence, facts and law on record, so the Applicant suffered no prejudice. Finding no error apparent on the record and no valid reason for review, the Court dismissed the application with costs in the cause.

Key legal issues

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01

Whether failure of the court to consider a party's filed submissions amounts to an error apparent on the face of the record justifying review under Rule 33(1)

Holding

No. The Court held that although the submissions had not been filed or received at the time of judgment, it had considered the applicant's evidence, the law and the facts, so the applicant was not prejudiced and no error apparent on the record existed.

Reasoning

Rule 33(1) of the ELRC (Procedure) Rules 2016 permits review for discovery of new matter, error apparent on the face of the record, need for clarification, or other sufficient reason. The Applicant argued the non-consideration of its submissions was such an error. The Court found the submissions were never received due to Covid-19 registry closure, but that judgment was reached on the evidence and law already on record, meaning no miscarriage of justice or prejudice arose. Consequently, no valid basis for review existed.

p. 3
02

Whether the review application was brought under the correct procedural framework

Holding

The Respondent argued the application should have been under Section 16 of the ELRC Act and Rule 33 of the ELRC (Procedure) Rules 2016 rather than Section 32 of the now-defunct Industrial Court Rules 2010, but the Court determined the application on its merits under Rule 33.

Reasoning

The Respondent contended that reliance on Section 32 of the Industrial Court Rules 2010 was misplaced since those rules were no longer in force, and that review power derives from Section 80 of the Civil Procedure Act read with Order 45 Rule 1(1) of the Civil Procedure Rules. The Court, however, proceeded to examine the merits under Rule 33(1) of the ELRC (Procedure) Rules 2016 and dismissed the application on the substantive question of error apparent on the record rather than on the wrong legal basis cited.

p. 3

Legal principles established

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  • A party is not prejudiced where, although its submissions were not considered, the court considered all the evidence and the law on record in arriving at its determination

Court orders

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  1. 1.The Chamber Summons application dated 10th August 2020 is dismissed
  2. 2.Costs in the cause

Authorities

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Legislation

  • Employment and Labour Relations Court (Procedure) Rules, 2016Rule 33(1)
  • Employment and Labour Relations Court ActSection 16
  • Industrial Court Rules 2010Section 32
  • Civil Procedure ActSection 80
  • Civil Procedure RulesOrder 45 Rule 1(1)

Cases cited (5)

  • Julius Wafula Chebi v Gibon Akifuma & Egap Solutions Limited
    Cause 1013 of 2013
  • Phillip Chemwolo & Another v Augustine Kubende
    [1982-88] 1 KAR
  • Republic v Advocates Disciplinary Tribunal ex parte Apollo Mboya
    [2019] eKLR
  • Nyamogo & Nyamogo v Kogo
    (2001) EA 174
  • National Bank of Kenya v Ndungu
    [1997] eKLR
Jurisdiction invoked
Rule 33 of the Employment and Labour Relations Court (Procedure) Rules, 2016 and Section 16 of the Employment and Labour Relations Court Act

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, "Albert Yawa Katsenga v Kenya Revenue Authority [2020] KEELRC 211 (KLR)", Case Analysis (2020). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/211/eng@2020-11-11

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