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ELRCDismissedCivil Appeal No 8 of 2021· [2021] KEELRC 457 (KLR)

Ferrotech Industries Ltd v Mwadziwe Ali Hare [2021] KEELRC 457 (KLR)

Employment and Labour Relations Court
16 November 2021
BMB O M Manani
3,248 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~13 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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This is a first-instance appeal to the Employment and Labour Relations Court by B O M Manani J against a ruling of the Kaloleni magistrate's court delivered on 3 August 2021 declining to review its judgment of 17 December 2019. The Respondent raised a preliminary objection under section 52(2) of the Work Injury Benefits Act, article 162(2) of the Constitution and section 12 of the ELRC Court Act, contending that WIBA donates appellate jurisdiction only over decisions of the Director of Occupational Safety and Health Services. The court rejected this, holding that the appeal concerned the trial court's review jurisdiction under section 80 of the Civil Procedure Act and Order 45, and that section 12 of the ELRC Act covers the underlying employment dispute. On the merits, the court found that the Appellant's appeal in Malindi High Court Civil Appeal No. 6 of 2020 had never been validly withdrawn - the Notice of Withdrawal bore no court receipt stamp or endorsement on the file - so the Appellant was impermissibly pursuing appeal and review concurrently, rendering the review application incompetent. The court further agreed with the trial magistrate that an allegation that the trial court lacked jurisdiction is an error of law amendable only on appeal, not review, following Julius Ochieng Oloo and distinguishing Nairobi City Council. Finally, the unexplained delay of one year and seven months in filing the review was held inordinate and fatal, amounting to laches. The preliminary objection was disallowed but the appeal was dismissed with costs to the Respondent.

Key legal issues

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01

Jurisdiction of the ELRC to hear an appeal from a magistrate's ruling on review despite section 52(2) of WIBA

Holding

The preliminary objection fails; section 52(2) of WIBA governs appeals from the Director of Occupational Safety and Health Services, while this appeal challenges review under section 80 of the Civil Procedure Act, and section 12 of the ELRC Act confers jurisdiction over employment disputes and incidental matters

Reasoning

The court distinguished the appellate channel under WIBA, which applies to decisions of the Director on claims under the Act, from the present appeal against a magistrate's exercise of review jurisdiction under section 80 of the Civil Procedure Act. The fact that the review question concerned WIBA jurisdiction does not bring the matter within section 52(2). The underlying dispute was an employment dispute, so section 12 of the ELRC Act applies.

p. 1
02

Whether the Appellant could apply for review while its appeal (Malindi High Court Civil Appeal No. 6 of 2020) was still live

Holding

The Notice of Withdrawal of Appeal was not stamped, placed on the court file or endorsed, so the appeal remained alive and the review application was inappropriately filed; the trial court's dismissal of the review on this ground was sound

Reasoning

The court called for the physical court file in Civil Appeal No. 6 of 2020 and found no Notice of Withdrawal of Appeal placed on file or endorsed. Applying the rule that a document is deemed filed only when stamped and received, the appeal remained live. The Appellant's own affidavit conceded the physical file was missing. Simultaneous pursuit of appeal and review is legally impermissible.

p. 2
03

Whether want of jurisdiction is a ground for review under Order 45

Holding

No; a claim that the court wrongly assumed jurisdiction is an error of law and judgment correctable only on appeal, not a ground for review

Reasoning

The court endorsed the trial magistrate's view and the line of authority (Patrick Miano, Julius Ochieng Oloo, Pancras T. Swai, Manjula Dhirajlal Soni) holding that errors of law, including alleged want of jurisdiction, are matters for appeal. The later Court of Appeal decision in Julius Ochieng Oloo expresses the binding latest position, and Nairobi City Council was distinguished as concerning a matter outside the pleadings.

p. 4
04

Whether the delay of one year and seven months in filing the review application was fatal

Holding

Yes; the unexplained delay was inordinate and the Appellant was guilty of laches, as the trial magistrate held

Reasoning

Order 45 requires review applications to be brought without unreasonable delay. Judgment was delivered on 17 December 2019 and the application filed on 6 July 2021, one year and seven months later. None of the supporting affidavits explained the delay, unlike the six-month delay in the Nairobi City Council case relied on by the Appellant.

p. 4

Legal principles established

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  • A document intended for filing in court can only be deemed filed when it is stamped with the court receipt stamp at the relevant court registry
  • A party may not pursue an appeal and a review of the same decision simultaneously; where an appeal has been filed and remains live, the party must first withdraw the appeal before applying for review
  • A claim that a court wrongly assumed jurisdiction is an error of law suitable for appeal, not a ground for review; it is not an error apparent on the face of the record
  • An unexplained inordinate delay in making an application for review requires proper explanation and is not a 'sufficient reason' for review

Court orders

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  1. 1.Preliminary objection by the Respondent disallowed
  2. 2.The appeal dismissed
  3. 3.Costs of the appeal awarded to the Respondent

Authorities

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Legislation

  • Work Injury Benefits Actsection 52(2)
  • Constitution of Kenya 2010article 162(2)
  • Employment and Labour Relations Court Actsection 12
  • Employment and Labour Relations Actsection 12
  • Civil Procedure Actsection 80
  • Civil Procedure RulesOrder 45
  • ELRC Procedure RulesRule 28(3)

Cases cited (9)

  • Paul Odhiambo Onyango & another v Kalu Works Limited
    [2020] eKLR
  • Republic v Public Procurement and Administrative Review Board Ex-Parte Zhongman Petroleum & Natural Gas Group Company Limited
    [2010] eKLR
  • Multichoice (Kenya) Ltd v Wananchi Group (Kenya) Limited & 2 Others
    [2020] eKLR
  • Patrick Miano v Mathira Coffee Farmers Housing Cooperative Society Ltd
    [2017] eKLR
  • Julius Ochieng Oloo & another v Lilian Wanjiku Gitonga
    [2019] eKLR
  • Nairobi City Council v Thabiti Enterprises Ltd
    (1995-1998) 2 EA 231
  • Pancras T. Swai v Kenya Breweries Limited
    [2014] eKLR
  • Manjula Dhirajlal Soni v Dukes Investments International Limited & 2 others
    [2018] eKLR
  • Stephen Gathua Kimani v Nancy Wanjira Waruingi t/a Providence Auctioneers
    [2016] eKLR
On appeal from
Magistrate's Court (Kaloleni)
Kaloleni SRMCC No. 254 of 2018
Jurisdiction invoked
Section 12 of the Employment and Labour Relations Act; appeal against a magistrate's ruling declining review under section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (7)

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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, "Ferrotech Industries Ltd v Mwadziwe Ali Hare [2021] KEELRC 457 (KLR)", Case Analysis (2021). Civil Appeal No 8 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/457/eng@2021-11-16

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