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ELRCDismissedNot stated in the judgment· [2021] KEELRC 566 (KLR)

Toett Geoffrey & another v Thomas Kimeli Cheruiyot & 5 others; Public Service Commission & 2 others (Interested Parties) [2021] KEELRC 566 (KLR)

Employment and Labour Relations Court
4 November 2021
1,518 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Employment Court refused to review its earlier judgment because the applicants waited ten months and showed no valid review ground.

What this practically means

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Executive summary

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The petitioners, whose petition was dismissed by Mbaru J on 30 July 2020 on the ground that the court lacked jurisdiction, filed a Notice of Motion dated 8 April 2021 seeking leave to apply for review of that judgment and a conservatory order staying its execution. The respondents opposed the application, contending it was brought after inordinate and unexplained delay of ten to eleven months, disclosed no ground for review, and was an afterthought intended to delay taxation of a bill of costs of Kshs1,474,322. Makau J held that under Rule 33 of the ELRC Procedure Rules, 2016 the right to apply for review is automatic and no leave is required, so the application as drawn lacked merit; however, because the petitioners were unrepresented and the respondents had treated the motion as a substantive review application, the court dealt with it as such. On the merits, the court found the ten-month delay unreasonable and unexplained, rendering the application an afterthought, and held that none of the four grounds for review under Rule 33 was established: the applicants advanced no new evidence, no error apparent on the face of the record, and their grievances about the judgment's merits on jurisdiction and locus standi were matters for appeal, not review. The application was accordingly dismissed, the review declined and prayers b, c and d of the petition rejected. Because the matter was public interest litigation, the applicants were not condemned to pay costs. The ruling was delivered electronically pursuant to Covid-19 directives with the parties' waiver of Rule 28(3).

Key legal issues

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01

Whether leave is required before applying for review under Rule 33 of the ELRC Procedure Rules, 2016

Holding

Leave is not required; the right to review is automatic to an aggrieved party who complies with the conditions, including promptness and establishing one of the four grounds. The application as drawn (for leave) lacked merit.

Reasoning

The court noted the applicants did not cite the legal basis of the application and identified Rule 33 of the ELRC Procedure Rules 2016 as the applicable provision. Rule 33 allows an aggrieved person to apply for review within reasonable time on four grounds. Because the right is automatic, an application framed as one for leave lacks merit, though the court, mindful the applicants were unrepresented, treated it as a substantive review application.

p. 2
02

Whether the application was made without unreasonable delay

Holding

The ten-month delay was unreasonable and unexplained; the reasons advanced did not add up and the application was an afterthought.

Reasoning

The judgment was delivered on 30.7.2020 and the application filed on 7.6.2021, a delay of ten months. The petitioners attributed the delay to a capacity building exercise, a failed public complaint process and the respondent's bill of costs, but the court found these reasons insufficient. The respondents' evidence that the judgment was delivered electronically and the delay was inordinate was accepted.

p. 3
03

Whether the applicants established any ground for review under Rule 33

Holding

None of the four grounds (new and important matter or evidence, error apparent on the face of the record, clarification, or sufficient reason) was established; the application lacked merit.

Reasoning

The court examined the grounds advanced and found none fell within Rule 33. The applicants instead accused the respondents and interested parties of misleading the court with falsehoods and faulted the merits of the judgment on jurisdiction and locus standi, which are matters for appeal rather than review. Particulars of the alleged errors were not given.

p. 3

Legal principles established

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  • The right to apply for review under Rule 33 of the ELRC Procedure Rules, 2016 is automatic to an aggrieved party; no leave of the court is required, only compliance with the conditions including promptness and establishing one or more of the four grounds.
  • An application for review must be made within reasonable time; unexplained delay renders it an afterthought.
  • Arguments faulting the merits of a judgment amount to grounds of appeal, not error apparent on the face of the record warranting review.

Court orders

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  1. 1.The application for review of the judgment delivered on 30.7.2020 is declined
  2. 2.The request to grant prayers b, c and d in the petition is rejected
  3. 3.The applicants are not condemned to pay costs of the application, it being a public litigation case

Authorities

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Legislation

  • Employment and Labour Relations Court (Procedure) Rules, 2016Rule 33
  • Employment and Labour Relations Court (Procedure) Rules, 2016Rule 28(3)
  • Civil Procedure RulesOrder 45 Rule 1
Jurisdiction invoked
Rule 33 of the Employment and Labour Relations Court (Procedure) Rules, 2016

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, "Toett Geoffrey & another v Thomas Kimeli Cheruiyot & 5 others; Public Service Commission & 2 others (Interested Parties) [2021] KEELRC 566 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/566/eng@2021-11-04

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