Sergii Gergel v ARFA AFRA LTD t/a IMAX Africa Ltd [2020] KEELRC 1881 (KLR)
The bottom line
#A Kenyan employment court refused to reopen a decided case, confirming that unhappy litigants should appeal, not seek review.
What this practically means
#Executive summary
#Key legal issues
#Whether the alleged fresh evidence justified review under Rule 33 of the ELRC Rules, 2016
No - the documents were in the applicant's and his advocate's possession as at 20.05.2019, before the hearing on 08.10.2019, and a deliberate decision was made not to file them; the due-diligence standard was not met
Rule 33 permits review on new and important matter or evidence which, after due diligence, was not within the applicant's knowledge or could not be produced at the time of the judgment. The supporting affidavits showed the evidence was received on 16.05.2019 and known to the applicant by 20.05.2019, and the advocate confirmed a deliberate choice not to file it, believing oral evidence would suffice. The set standard and criteria were therefore not satisfied.
Whether dissatisfaction with the judgment's findings and reasoning amounts to an error apparent on the face of the record
No - such dissatisfaction may constitute grounds of appeal but certainly not review
Following Bethwel Omondi Okal v MD KPLC and National Bank of Kenya v Ndungu Njau, the Court held that an error for review must be self-evident and not require elaborate argument; it is not sufficient that another judge could have taken a different view or that the court reached an erroneous conclusion of law. The applicant's complaints about the Court's findings on termination, the director/employee distinction and the addendum were matters for appeal.
Whether seeking a rehearing on previously-held evidence on review is permissible
No - to the extent the applicant sought a rehearing upon evidence in his possession at the hearing, the application was an abuse of Court process
The applicant urged no material changes to the judgment consequential on review but sought admission of new evidence, setting aside of the judgment and a fresh hearing. The Court held that allowing litigants to wait for judgment, decipher weaknesses in their cases, and cure them through disguised review applications would open litigation to endless process inconsistent with due process; Rule 33(5) does not apply.
Whether mistakes by the claimant's counsel in failing to file documents constituted 'any other sufficient reason' for review
No - the evidence was available to and known by both counsel and applicant, who made a deliberate decision not to file it; no reason sufficiently analogous to the Rule 33 grounds was established
Following the Indian Supreme Court decision in Ajit Kumar Rath v State of Orisa, the power of review can be exercised only for correction of a patent error of law or fact which stares in the face without elaborate argument, and 'any other sufficient reason' must be analogous to the specified grounds. Counsel's error of judgment in choosing not to file documents, made with the applicant's knowledge, did not qualify, and the evidence could not cure the contradictory accounts found in the judgment.
Legal principles established
#- A review may only be granted to correct an apparent error or omission that is self-evident and requires no elaborate argument; a different view of the matter or an erroneous conclusion of law is not a ground for review
- A party's dissatisfaction with the findings and reasoning in a judgment constitutes grounds of appeal, not grounds for review
- The review process is not for reopening concluded cases where a litigant seeks to cure weaknesses in their case identified in the judgment
- New evidence sought on review must be matter which, after due diligence, was not within the applicant's knowledge or could not be produced at the time of the judgment
- 'Any other sufficient reason' for review must be a reason sufficiently analogous to the grounds specified in the rule
Court orders
#- 1.The application for review filed for the claimant on 12.11.2019 is dismissed with costs
- Jurisdiction invoked
- Order 45 rule 1 of the Civil Procedure Rules; sections 1A, 3A and 80 of the Civil Procedure Act; section 16 of the Employment and Labour Relations Court Act, 2011; rule 32 of the Industrial Relations Court Rules, 2010; Rule 33 of the Employment and Labour Relations Court Rules, 2016
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Sergii Gergel v ARFA AFRA LTD t/a IMAX Africa Ltd [2020] KEELRC 1881 (KLR)", Case Analysis (2020). Not stated in the judgment excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1881/eng@2020-01-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.