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ELRCDismissedNot stated in judgment (ELRC cause; judgment dated 31.1.2019 dismissed suit)· [2020] KEELRC 1586 (KLR)

Anthony Chelimo v Kenya Commercial Bank Limited [2020] KEELRC 1586 (KLR)

Employment and Labour Relations Court
21 February 2020
OMONESMUS N. MAKAU
1,899 words in judgment
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The bottom line

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Kenya's ELRC dismissed a review application because the claimant was really challenging how evidence was assessed, which only an appeal—not review—can fix.

What this practically means

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Executive summary

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This is a ruling of the Employment and Labour Relations Court at Nairobi (Onesmus N. Makau, J) on the claimant's Notice of Motion dated 29.4.2019 seeking review, variation and/or setting aside of the court's judgment of 31 January 2019, which had dismissed his suit. The application was brought under section 16 of the ELRC Act and Rule 33(3) of the ELRC (Procedure) Rules, 2016. The claimant argued there were mistakes and patent errors on the face of the judgment: that the court wrongly found he breached the Dual Custody Principle, allowing theft of Kshs 4.5 million, and that it ignored crucial evidence, including an admission by Mr Nyabasia that he was solely responsible for the theft. The respondent opposed, contending the application disclosed no error apparent on the face of the record but merely challenged the court's assessment of evidence, and that granting it would amount to the court sitting on appeal over its own decision. The sole issue was whether the application met the threshold for review. The court held the 4-month delay was not unreasonable and no appeal was on record, but on the merits found the grounds raised - challenging the court's assessment of evidence and alleged failure to consider crucial evidence - were grounds best suited for an appeal, since establishing them would require reappraisal of the evidence. Relying on Pancras T. Swai v Kenya Breweries Limited and Zablon Mokua v Solomon M. Choti, the court held an erroneous conclusion of law or evidence is not a ground for review. The application was dismissed with costs.

Key legal issues

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01

Whether the application met the threshold for review under Rule 33(1)(b) of the ELRC Procedure Rules

Holding

It did not; the complaint was a challenge to the court's assessment of evidence, amounting to an appeal disguised as review

Reasoning

The court reviewed Rule 33(1) thresholds: no appeal, reasonable delay, and a ground under (a)-(d). Although the application was filed 4 months after judgment without appeal, the claimed errors - mis-assessment of evidence and failure to consider crucial evidence - require reappraisal of evidence, which is appellate in nature and cannot ground review.

p. 3
02

Whether the delay of 4 months in bringing the application was unreasonable

Holding

No; the delay of 4 months was not unreasonable and no appeal was on record, permitting consideration on the merits

Reasoning

The application was made on 9.5.2019 following a judgment of 31.1.2019. The court accepted the applicant's submission that the delay was not unreasonable and noted the absence of any appeal against the impugned judgment, so it proceeded to consider the merits of the review application.

p. 2

Legal principles established

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  • An erroneous conclusion of law or evidence is not a ground for review but may be a good ground for appeal
  • An error which requires long drawn reasoning or on which two opinions may exist is not an error apparent on the face of the record

Court orders

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  1. 1.The application for review is dismissed with costs

Authorities

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Legislation

  • Employment and Labour Relations Court Actsection 16
  • ELRC (Procedure) Rules, 2016Rule 33(1), 33(2)(b), 33(3)

Cases cited (5)

  • Zablon Mokua v Solomon M. Choti & 3 others
    [2016] e KLR
  • Pancras T. Swai v Kenya Breweries Limited
    [2014] e KLR
  • Republic v Public Procurement Administrative Board & 2 others
    [2018] e KLR
  • Francis Origo & another v Jacob Kumali Mugala
    C.A Civ Appeal No. 149 of 2001
  • Nyamogo & Nyamogo v Kogo
    [2001] EA 174
Jurisdiction invoked
Section 16 of the Employment and Labour Relations Court Act and Rule 33(3) of the ELRC (Procedure) Rules, 2016

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (5)

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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, "Anthony Chelimo v Kenya Commercial Bank Limited [2020] KEELRC 1586 (KLR)", Case Analysis (2020). Not stated in judgment (ELRC cause; judgment dated 31.1.2019 dismissed suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1586/eng@2020-02-24

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