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ELRCDismissedELRC Cause No. 257 of 2015· [2020] KEELRC 1372 (KLR)

Monicah Wanjiru Mwangi v Trans Mattresses Limited [2020] KEELRC 1372 (KLR)

Employment and Labour Relations Court
5 March 2020
MNMathews N. Nduma
594 words in judgment
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The bottom line

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What this practically means

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Executive summary

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The respondent applicant moved the court by an application dated 30th August 2019 seeking review of the judgment and orders of 9th July 2019, together with leave for the firm of Muli and Company Advocates to come on record in place of Omweno and Company Advocates. The application was founded on two new matters allegedly not canvassed at trial: that the court lacked jurisdiction because the cause of action arose in 2010 yet the suit was filed in the ELRC in 2015 beyond the limitation period; and that the benefits awarded under a 2017 CBA did not apply to the claimant. The claimant opposed the application, explaining that the suit was filed on 18th March 2010 before the Kitale Chief Magistrates Court following her dismissal on 11th January 2010, and was transferred by consent of the parties vide Kitale High Court Miscellaneous Civil Application No. 38 of 2014, thereafter proceeding to trial in the ELRC as Cause No. 257 of 2015 without the jurisdictional issue being raised. The court, applying Rule 33(1) of the ELRC (Procedure) Rules 2016, held that the application did not qualify under any of the grounds for review; the limitation ground was misconceived since the suit was filed in time before the magistrates' court and correctly transferred by consent; and any challenge to the substantive award lay on appeal to an appellate court, not on review before the trial court. The court dismissed the application for lack of merit, holding that the applicant sought a second bite at the cherry. No costs order appears in the ruling.

Key legal issues

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01

Whether the review application disclosed grounds under Rule 33(1)

Holding

It did not; the limitation ground was misconceived and the CBA ground was a challenge to the merits of the award

Reasoning

Rule 33(1) permits review for discovery of new matter, error apparent on the face of the record, clarification, or other sufficient reason. The applicant raised limitation, which failed because the suit was originally filed on 18th March 2010 before the Kitale Chief Magistrates Court, within time, and transferred by consent to the ELRC under Kitale High Court Miscellaneous Civil Application No. 38 of 2014. The CBA point attacked the substantive award, a matter for appeal only.

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02

Whether the court lacked jurisdiction for want of limitation

Holding

No; the cause of action arose on 11th January 2010 and the suit was filed on 18th March 2010 before the Kitale Chief Magistrates Court

Reasoning

The claimant averred that the dismissal occurred on 11th January 2010 and the suit was filed on 18th March 2010 in the Chief Magistrates Court at Kitale. It was transferred by consent of the parties and proceeded to trial in the ELRC as Cause No. 257 of 2015 without the jurisdictional issue ever being raised. The court therefore held the limitation objection misconceived.

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Legal principles established

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  • A challenge to a substantive award in a judgment may only be made to an appellate court, not the trial court on review
  • A suit filed within time before a subordinate court and transferred by consent to the ELRC is not defeated by limitation

Court orders

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  1. 1.The application for review dated 30th August 2019 is dismissed for lack of merit

Authorities

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Legislation

  • Employment and Labour Relations Court (Procedure) Rules 2016Rule 33(1)
Jurisdiction invoked
Employment and Labour Relations Court (Procedure) Rules 2016, Rule 33(1)

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, "Monicah Wanjiru Mwangi v Trans Mattresses Limited [2020] KEELRC 1372 (KLR)", Case Analysis (2020). ELRC Cause No. 257 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1372/eng@2020-03-05

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