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ELRCDismissedCivil Appeal No 331 of 2016 (initially filed as Civil Appeal No 120 of 2012 in the High Court at Mombasa; erroneously registered as Cause No 331 of 2016)· [2020] KEELRC 334 (KLR)

Peter Mulaa Mutunga v Rubi Plastic Industries [2020] KEELRC 334 (KLR)

Employment and Labour Relations Court
22 October 2020
LNLinnet Ndolo
1,474 words in judgment
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The bottom line

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A Kenyan court confirmed that review cannot fix a decision you simply disagree with — disputes about how evidence was understood belong in an appeal, not review.

What this practically means

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Executive summary

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This was an appeal in the Employment and Labour Relations Court at Mombasa, originally filed in the High Court as Civil Appeal No 120 of 2012 and transferred to the ELRC by order of P.J Otieno J, then erroneously registered as Cause No 331 of 2016. The underlying dispute was a claim for damages for a work injury filed by plaint dated 12th July 2007. The trial court (Hon R. Kirui, PM) dismissed the claim on 11th November 2010, noting discrepancies between the Plaintiff's pleadings (a cut on the 3rd and 5th right fingers while bolting a knife) and his evidence (a cut to the thigh while replacing a blade). The Appellant applied for review under Order 45 Rule 1 of the Civil Procedure Rules, contending that typing errors in the proceedings had produced an error apparent on the face of the record. Hon Odenyo, PM dismissed the application on 11th July 2012, holding the alleged errors were discoverable with due diligence and that litigation must come to an end. On appeal, Linnet Ndolo J applied the definition of error apparent on the face of the record in Nyamogo & Nyamogo v Kogo and the principle in Republic v Advocates Disciplinary Tribunal Ex Parte Apollo Mboya that review cannot correct an erroneous decision. The court held that any mistake by the trial court amounted to misapprehension of evidence, a ground of appeal rather than review, and that the trial court's refusal to review could not be faulted. The appeal was dismissed with each party bearing their own costs.

Key legal issues

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01

What constitutes an error apparent on the face of the record for purposes of review

Holding

An error apparent on the face of the record is one where an error on a substantial point of law stares one in the face and there could reasonably be no two opinions; a mere erroneous decision, or a possible view taken by the court, does not qualify

Reasoning

The court adopted the classic definition in Nyamogo & Nyamogo v Kogo distinguishing a mere erroneous decision from an error apparent on the face of the record. An error requiring a long drawn process of reasoning, or where another view was possible, is not reviewable; it is a matter for appeal.

p. 2
02

Whether the Appellant's complaint of misrecorded evidence warranted review

Holding

No; the complaint amounted at most to misapprehension of evidence, a ground of appeal and not a ground for review, so the trial court properly declined review

Reasoning

The Appellant claimed the trial Magistrate relied on an incorrectly typed record of his testimony. The court held that even if a mistake occurred, it fell within misapprehension of evidence, which could only be pursued on appeal. The trial court's decision to decline review was therefore unimpeachable.

p. 3

Legal principles established

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  • A misapprehension of evidence is a ground of appeal but not a ground for review; review cannot be used to correct an erroneous decision
  • Courts must guard against sitting on appeal over their own decisions under the pretext of review

Court orders

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  1. 1.The appeal fails and is dismissed
  2. 2.Each party to bear their own costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 45 Rule 1
  • Employment and Labour Relations Court (Procedure) RulesRule 33(1)

Cases cited (2)

  • Nyamogo & Nyamogo v Kogo
    (2001) EA 170
  • Republic v Advocates Disciplinary Tribunal Ex Parte Apollo Mboya
    [2019] eKLR
On appeal from
High Court at Mombasa / trial court (Principal Magistrate's court)
Civil Appeal No 120 of 2012 (arising from ruling by Hon Odenyo, PM delivered 11th July 2012)
Jurisdiction invoked
Matter transferred from the High Court to the Employment and Labour Relations Court by order of P.J Otieno J on 14th April 2016 (work-injury dispute falling within ELRC jurisdiction)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (18)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Peter Mulaa Mutunga v Rubi Plastic Industries [2020] KEELRC 334 (KLR)", Case Analysis (2020). Civil Appeal No 331 of 2016 (initially filed as Civil Appeal No 120 of 2012 in the High Court at Mombasa; erroneously registered as Cause No 331 of 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/334/eng@2020-10-22

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