Kenya Engineering Workers Union v Rolmil Kenya Limited; Hebros Auctioneers (Respondent); Transafrica Motors Limited (Objector/Applicant) [2021] KEELRC 1242 (KLR)
The bottom line
#A Kenyan court refused to accept new ownership documents filed after losing, ruling parties must present all evidence the first time.
What this practically means
#Executive summary
#Key legal issues
#Whether the imported invoices and payment receipts constitute new and important matter for review under Rule 33
They do not; the evidence was available to the Applicant at the time of the ruling and its non-production was due to the Applicant's own remissness
The Applicant explained the non-production by the Finance Officer's annual leave, but did not name the officer, prove the leave, or show the officer could not be recalled to avail the documents. Under Order 45/Rule 33 the new evidence must not have been within the applicant's knowledge and must not have been producible with due diligence. That strict standard was not met, so the review ground failed.
Whether the review application was an attempt to reopen a concluded matter
Yes; the court treated it as an attempt to fill evidentiary gaps after an adverse ruling, contrary to the principle of res judicata
The ruling of 15th April 2020 had conclusively declined to lift the proclamation for want of proof of ownership. A party who loses cannot procure further evidence to change the court's mind. Allowing it would condone producing evidence in instalments and sealing loopholes, a practice courts must not countenance.
Legal principles established
#- Parties must produce all their evidence at the hearing and cannot patch up gaps by producing fresh evidence on review; review on the ground of discovery of new evidence requires strict proof of due diligence
Court orders
#- 1.The application dated 16th December 2020 is dismissed
- 2.Costs of the application awarded to the Decree Holder
- Jurisdiction invoked
- Section 16 of the Employment and Labour Relations Court Act and Rule 33 of the Employment and Labour Relations Court (Procedure) Rules (review of the court's own orders)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Engineering Workers Union v Rolmil Kenya Limited; Hebros Auctioneers (Respondent); Transafrica Motors Limited (Objector/Applicant) [2021] KEELRC 1242 (KLR)", Case Analysis (2021). Cause No 41 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1242/eng@2021-07-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.