Kenya Aviation Workers Union v AGS Worldwide Movers Limited [2021] KEELRC 1346 (KLR)
The bottom line
#The Employment Court dismissed a union's attempt to revive its case through review, confirming that unhappy parties must appeal, not seek review.
What this practically means
#Executive summary
#Key legal issues
#Whether omission to consider the conciliator's report amounted to an error apparent on the face of the record under Rule 33(1)(b)
The Court held that the application did not meet the Rule 33 grounds; the complaint was not a reviewable error but a disagreement with the outcome amounting to an attempted appeal.
The Applicant argued that the Court's failure to consider the conciliator's report was an erroneous omission of critical evidence warranting review. The Respondent countered that the report was filed after the Court was seized of the dispute, that a conciliator's opinion is not binding unless the court refers the matter back, and that the application was couched as an appeal against the Court's own ruling. The Court agreed with the Respondent that Rule 33 grounds were not engaged.
Correct procedural avenue where a party is aggrieved by a ruling
The proper remedy was an appeal to the Court of Appeal, not review.
The Court reasoned that a grievance about the manner in which a decision was reached, namely the alleged failure to consider evidence, is an attack on the correctness of the decision itself. Such a complaint must go up on appeal, since a judge cannot review his own decision on grounds that effectively seek re-argument of the merits.
Legal principles established
#- A party aggrieved by a first-instance ruling should prefer an appeal to the Court of Appeal; a court cannot sit on appeal over its own decision, and dissatisfaction with a ruling's reasoning is not a ground for review under Rule 33.
Court orders
#- 1.The Notice of Motion dated 8th February 2021 seeking review of the Ruling of 16th December 2020 is dismissed
- 2.Costs of the application awarded to the Respondent
- Jurisdiction invoked
- Inherent review jurisdiction under Rule 33 of the Employment and Labour Relations Court (Procedure) Rules 2016
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Aviation Workers Union v AGS Worldwide Movers Limited [2021] KEELRC 1346 (KLR)", Case Analysis (2021). Not stated in judgment (Notice of Motion dated 8th February 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1346/eng@2021-06-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.