Kenya Union of Hair and Beauty Salon Workers Union v Metal Crowns Limited [2020] KEELRC 1597 (KLR)
The bottom line
#Kenya's Employment Court confirmed you cannot seek review of a judgment after filing an appeal notice — pick one route and stick to it.
What this practically means
#Executive summary
#Key legal issues
#Whether an error apparent on the face of the record was established under Rule 33(1)(b) of the ELRC (Procedure) Rules, 2016
No error apparent on the face of the record was established; the complaints were matters for appeal
The Court adopted the Muyodi test that an error apparent must stare one in the face and admit of no two opinions. The Applicant's complaints - that the judge referenced the unamended Memorandum of Claim and stated submissions were not filed - went to how the judge decided the case, i.e. appellate questions. The Court held that a court of concurrent jurisdiction cannot sit on its own appeal and cannot entertain issues for appeal.
Whether a pending notice of appeal bars an application for review
Yes; the filing of a notice of appeal, not withdrawn, renders the review application incompetent
Rule 33(1) permits review only by a person aggrieved by a decree from which no appeal is preferred or from which no appeal is allowed. The Applicant had filed a notice of appeal which had not been withdrawn. Under Order 42 Rule 6(4) of the Civil Procedure Rules an appeal to the Court of Appeal is deemed filed once notice of appeal is given. The review application therefore fell outside Rule 33(1).
Legal principles established
#- Review is confined to error apparent on the face of the record; re-appraisal of evidence or the correctness of the judge's application of law or discretion is appellate, not review, jurisdiction
- An application for review is incompetent where a notice of appeal has been filed and not withdrawn, since under Order 42 Rule 6(4) of the Civil Procedure Rules an appeal is deemed filed upon notice of appeal
Court orders
#- 1.The Notice of Motion application dated 22nd January 2019 seeking review of the judgment dated 17th December 2018 was dismissed
- 2.Costs awarded to the Respondent
- Jurisdiction invoked
- Section 16 of the Employment and Labour Relations Court Act and Rule 33 of the Employment and Labour Relations Court (Procedure) Rules, 2016; Articles 48 and 50(1) of the Constitution invoked by the Applicant
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Adul v County Assembly of Kisumu & 5 others (Petition 297 of 2014) [2023] KEELRC 251 (KLR)[2023] KEELRC 251 (KLR)2 Feb 2023applied
- Tanui v Chief Defence Forces & 2 others (Petition 153 of 2018) [2020] KEELRC 26 (KLR)[2020] KEELRC 26 (KLR)17 Dec 2020
Cite this brief
#Cite this brief
Caselaw, "Kenya Union of Hair and Beauty Salon Workers Union v Metal Crowns Limited [2020] KEELRC 1597 (KLR)", Case Analysis (2020). Not stated in judgment (a 2013 ELRC matter). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1597/eng@2020-01-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.