Munir Abubakar Masoud & 6 others v Registrar of Trade Unions; Banking, Insurance and Finance Union (Interested Party) [2020] KEELRC 1046 (KLR)

The court held that the applicant's complaints - that the Judge overlooked documentary evidence, considered issues not raised, and misapplied the Constitution and authorities - amount to allegations of errors of fact and law leading to a wrong determination. Rule 33(1) confines review to discovery of new and important matter, error apparent on the face of the record, need for clarification, or any other sufficient reason. Alleged misappreciation of evidence or misconstruction of law cannot found review, as that would amount to sitting on appeal on one's own judgment.

Rule 33(1) requires an application for review to be made within reasonable time. The judgment sought to be reviewed was delivered on 5th December 2012 and the application filed on 10th October 2016, a delay of almost 4 years. The applicant gave no justification for the delay. Citing Ivita v Kyumbu on prolonged and inexcusable delay, the court found the application was not made within a reasonable time as required by law.

The applicant, now resident in Mombasa, sought transfer of the review application to Mombasa. Both the respondent and the Interested Party opposed this, noting the respondent and Interested Party reside in Nairobi and accusing the applicant of forum shopping. The court held that Rule 33(2) requires the application for review to be heard by the Judge who made the order, unless that Judge is not attached to the court station, meaning the application can only be heard in the same station.

The applicant took issue with the joinder of the Interested Party to the original appeal and with the framing of issues. The court held that the joinder was not the subject of the judgment under review and therefore cannot form the subject of review; the complaint about unprocedural framing of issues similarly cannot be a ground for review under Rule 33.