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ELRCDismissedNot stated in judgment· [2021] KEELRC 1451 (KLR)

Edna Semiti v Intex Construction Ltd (Cause 1349 of 2016) (Employment and Labour) [2021] KEELRC 1451 (KLR)

Employment and Labour Relations Court
26 January 2021
MMM. Mbaru
1,251 words in judgment
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The bottom line

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A Kenyan employment court dismissed an attempt to review stay orders, confirming that fear of losing money is an appeal issue, not a review ground.

What this practically means

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Executive summary

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This was a ruling of the Employment and Labour Relations Court at Nairobi (M. Mbaru, J) on a notice of motion dated 11th January 2021 brought by the respondent in a suit in which it had been condemned on 28th January 2020 to pay the claimant Kshs 5,525,000 plus costs. Having filed a notice of appeal, the respondent had obtained conditional stay on 11th November 2020 on terms that it pay half the decretal amount and deposit the balance in a joint interest-earning account within 60 days, failing which execution could issue. The respondent then sought review or setting aside of those orders, or alternatively extension of time, and a stay pending its intended appeal, arguing the claimant was an individual with no disclosed source of income from whom the decretal sum could not be recovered if the appeal succeeded. The claimant opposed, calling the application an afterthought designed to delay compliance, noting the joint account had already been opened. The court identified a single issue: whether the applicant was entitled to review of the 11th November 2020 orders. Applying Rule 33(1) of the ELRC (Procedure) Rules 2016, the court held the applicant's apprehension of substantial loss was unsupported by evidence, constituted no discovery of new matter, no error apparent on the face of the record, and no other sufficient reason; grievances with the judgment belonged to an appeal, as the Court of Appeal held in Francis Origo v Jacob Kumali Mungala. Notably, on 14th January 2021 the court had ordered deposit of the entire decretal amount within seven days, and counsel confirmed compliance by 26th January 2021. The application was dismissed with costs.

Key legal issues

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01

Whether apprehension of substantial loss due to a claimant's lack of disclosed income constitutes a ground for review under Rule 33(1)

Holding

It does not; such averments without evidence are not discovery of new matter, mistake or error apparent on the face of the record, need for clarification, or any other sufficient reason, and belong to an appeal instead

Reasoning

The court held that review is confined to the four grounds in Rule 33(1) of the ELRC (Procedure) Rules 2016. The applicant's claim that the claimant had no disclosed source of income and might not refund the decretal sum if the appeal succeeded was unsupported by any evidence and was by no means discovery of new matter. A party aggrieved by a judgment should appeal, not seek review, as reaffirmed in Francis Origo v Jacob Kumali Mungala.

p. 2

Legal principles established

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  • An erroneous conclusion of law or evidence is a ground for appeal, not for review; review proceedings must strictly fall within the grounds in Rule 33(1) of the ELRC (Procedure) Rules 2016, and any attempt outside them is an abuse of the liberty to review

Court orders

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  1. 1.The application dated 11th January 2021 is dismissed with costs
Jurisdiction invoked
Sections 12 and 13 of the Employment and Labour Relations Court Act and Rule 33(1) 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, "Edna Semiti v Intex Construction Ltd (Cause 1349 of 2016)  (Employment and Labour) [2021] KEELRC 1451 (KLR)", Case Analysis (2021). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1451/eng@2021-01-26

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