Rift Valley Railways Workers Union (K) v Kenya Railways Staff Retirement Benefits Scheme & 2 others; Retirement Benefits Authority (Interested Party) [2021] KEELRC 1463 (KLR)
The bottom line
#Kenya's Employment Court ruled that a union cannot use review to re-argue a lost case; its real remedy was an appeal.
What this practically means
#Executive summary
#Key legal issues
#Discovery of new and important matter as a ground for review
The claimant did not identify any new and important matter that came to its knowledge after the ruling of 31st May 2018; the element of discovery was not established
Rule 33(1) requires that the matter be new, important, and discovered after the order was made despite due diligence. The supporting affidavit of the Secretary General asserted discovery generically but failed to state what the matter actually was or when it came to his knowledge. The court held the element of discovery 'does not exist'.
Whether findings on locus standi can be revisited on review
The court's findings on the claimant's standing relate to the merits of the ruling and cannot be corrected on review; the proper remedy was an appeal
The grounds in the application and affidavit attacked the reasoning, conclusions and findings of the court on standing. Review is confined to the Rule 33(1) grounds and is not a second bite at the merits. The trial court had already pronounced itself on standing, and decisions of courts of equal jurisdiction cannot ground a review.
Choice between review and appeal
Having moved for review, the claimant was bound by that choice; a party must elect between appeal and review
Applying the Court of Appeal decision in Gerald Kithu Muchanje, the court reiterated that a party must choose either to appeal or to apply for review, and exercising the right to review extinguishes the right of appeal against the same order.
Legal principles established
#- For a review, the applicant must demonstrate discovery of new and important matter not within their knowledge when the order was made, or a mistake or error apparent on the record, need for clarification, or other sufficient reason
- A party must elect between filing an appeal and applying for review; challenging the merits of a ruling is a ground for appeal, not review
Court orders
#- 1.The application dated 14th January 2020 is found without merit and is dismissed
- 2.Costs to the respondents; the Interested Party to bear own costs
- Jurisdiction invoked
- 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, "Rift Valley Railways Workers Union (K) v Kenya Railways Staff Retirement Benefits Scheme & 2 others; Retirement Benefits Authority (Interested Party) [2021] KEELRC 1463 (KLR)", Case Analysis (2021). Application and Notice of Motion dated 14th January 2020 (Cause ruling of 31st May 2018 under review). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1463/eng@2021-02-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.