George Nyakundi Ombaba v Attorney General [2021] KEELRC 1748 (KLR)
The bottom line
#Kenya's Employment Court dismissed a former engineer's attempt to increase his award, ruling that a 21-month delay and missing evidence cannot justify reviewing a judgment.
What this practically means
#Executive summary
#Key legal issues
#Functus officio
The court is not functus officio; Rule 33(1) permits a party aggrieved by a decree to apply for review within reasonable time.
The respondent argued the court was functus officio after judgment. The court held that Rule 33(1) of the ELRC (Procedure) Rules, 2016 expressly allows an aggrieved person to apply, within reasonable time, for review of a judgment or ruling from which no appeal is preferred or allowed. Since the application was grounded on an alleged error apparent on the face of the record, the objection failed.
Unreasonable delay
The application, filed about 21 months after judgment and after a Notice of Appeal, was filed after unreasonable delay.
The judgment was delivered on 8.3.2019 and the application filed on 9.12.2020, a delay of about 21 months. The delay was unexplained, and the applicant had filed a Notice of Appeal and requested typed proceedings, indicating the review was an afterthought. The delay could not be attributed to Covid-19 or financial constraint, contrary to Rule 33(1) which requires application within reasonable time.
Threshold for review - error apparent on the face of the record
No error apparent on the face of the record existed; the award was a conscious exercise of discretion based on the evidence produced.
The applicant claimed the court omitted annual increments of Kshs.550 when computing salary arrears. However, no evidence of the increments was before the court at judgment, and the applicant sought to introduce supporting documents only after judgment via Further Affidavit, which the court declined to admit. Applying National Bank of Kenya v Ndungu Njau and Nyamogo & Nyamogo v Kogo, a possible view or mere error is not a ground for review.
Legal principles established
#- A court retains jurisdiction to review its own judgment after delivery on the grounds in Rule 33 of the ELRC Procedure Rules, and is therefore not functus officio for that purpose.
- An error apparent on the face of the record must be self-evident; a mere erroneous decision or a view that is possibly open to the court is not a ground for review.
- A court cannot be said to have erred in not considering documents that were never presented in evidence; a judgment is based only on evidence adduced before the hearing closed.
Court orders
#- 1.The application for review is dismissed with no order as to costs.
- 2.On the court's own motion, the typographical error in paragraph 4 at page 3 of the judgment is corrected by deleting the first sentence and replacing it with the sentence: 'The claimant testified that he was employed as an Assistant Mechanical Engineer by the Ministry of Works (MOW) on 26th December, 1998 and later rose to become a Mechanical Engineer.'
- 3.Save for the said correction of the clerical error, the rest of the judgment remains unchanged.
- Jurisdiction invoked
- Sections 1A, 1B, 3A & 80 of the Civil Procedure Act and 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, "George Nyakundi Ombaba v Attorney General [2021] KEELRC 1748 (KLR)", Case Analysis (2021). Not stated in excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1748/eng@2021-05-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.