Gal Arbei & 2 others v Balton CP Limited [2020] KEELRC 276 (KLR)
The bottom line
#A Kenyan employment court refused to reopen security-for-costs orders because the employer already knew the facts when the orders were made.
What this practically means
#Executive summary
#Key legal issues
#Whether the Applicant satisfied the review threshold under rule 33(1)(a) of the ELRC (Procedure) Rules 2016
The application failed because the alleged discovery was not new; the relocation of the 1st and 2nd Claimants to Israel was known to the Applicant even before its 23/10/2018 applications, and the expiry of work permits was not shown to be irreversible or new
The court restated rule 33(1)(a), which requires discovery of new and important matter or evidence which, after due diligence, was not within the applicant's knowledge when the order was made. The court found the Applicant itself facilitated the Claimants' move to Israel and knew of the relocation when it filed the earlier applications, and that expiring work permits could be renewed. No new matter existed to justify review.
Whether the supporting affidavit sworn by Aviv Levi was incompetent for want of capacity
The court did not need to determine this point expressly; it disposed of the application on the review threshold, finding no merit in the review
The Claimants attacked the affidavit as sworn by a stranger to the proceedings; the Applicant responded that Levi, as Managing Director of the Respondent's subsidiary, was duly authorised and personally knew the Claimants. The court examined the parties' averments but resolved the application on the substantive review question, making no separate finding on the affidavit's validity.
Legal principles established
#- A matter already known to an applicant at the time an order was made does not constitute discovery of new and important matter for purposes of review under rule 33(1)(a)
Court orders
#- 1.The application for review dated 19/8/2020 is dismissed
- 2.Costs in the cause
- Jurisdiction invoked
- Rule 33(1)(a) of the Employment and Labour Relations Court (Procedure) Rules 2016, read with section 16 of the Employment and Labour Relations Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gal Arbei & 2 others v Balton CP Limited [2020] KEELRC 276 (KLR)", Case Analysis (2020). Not stated in judgment (application dated 19/8/2020 within the Amended Memorandum of Claim dated 13/12/2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/276/eng@2020-10-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.