John Obonyo & 5 others v Kenya Engineering Workers Union [2021] KEELRC 1422 (KLR)
The bottom line
#A Kenyan employment court refused to reinstate a dismissed case because the applicants sought review of an order that never existed and showed no valid legal ground.
What this practically means
#Executive summary
#Key legal issues
#Whether the review application satisfied the Rule 33 grounds
The application failed as no new evidence was discovered, no mistake or error apparent on the record was shown, no clarification was sought, and no sufficient cause was established
The court set out the four grounds for review under Rule 33(1) and tested the applicants' case against each. The applicants pointed to no new evidence, no error on the face of the record, no need for clarification, and no sufficient reason. Their counsel's failure to attend court was attributed to the advocates, not the applicants, but no Rule 33 ground flowed from that. The application therefore lacked foundation and was dismissed with costs.
Whether the review targeted an existing order
The applicants sought review of an order dismissing an application dated 26th November 2020, but the application actually dismissed on 11th February 2021 was dated 6th November 2020; there was no such order as the one identified
The order of 11th February 2021 expressly dismissed the application dated 6th November 2020 for want of prosecution and attendance. The review application, however, sought to reinstate an application dated 26th November 2020, an application that does not exist on the record. This mismatch was fatal: no order or application of 26th November 2020 existed, so the review had no valid subject matter.
Whether invocation of the non-existent Rule 33(1)(e) was fatal
Reliance on a non-existent rule is not fatal, but the substance of the application must still rest on sufficient grounds justifying review
The respondent objected that the application was brought under Rule 33(1)(e), a rule that does not exist in the Employment and Labour Relations Court (Procedure) Rules, 2016. The court agreed the rule does not exist but held that citing it was not fatal, since the court looks to substance over form. However, the applicants still had to demonstrate sufficient grounds under the existing Rule 33(1)(a)-(d), which they failed to do.
Legal principles established
#- A review may only issue where there is discovery of new and important matter, a mistake or error apparent on the face of the record, need for clarification, or any other sufficient reason, and there must exist an order upon which the review is sought
- Reliance on a non-existent rule is not fatal provided the substance of the orders sought is grounded on sufficient reasons justifying review
Court orders
#- 1.The application dated 25th February 2021 seeking review of the orders issued on 11th February 2021 is dismissed
- 2.Costs to the respondent
- Jurisdiction invoked
- Rule 33(1) and 33(2) of the Employment and Labour Relations Court (Procedure) Rules, 2016; sections 80, 1A, 1B and 3A of the Civil Procedure Act; Order 12 rule 7 and Order 45 rules 1, 2 and 3 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "John Obonyo & 5 others v Kenya Engineering Workers Union [2021] KEELRC 1422 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1422/eng@2021-05-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.