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ELRCDismissedApplication dated 28/5/2020 (not fully stated in judgment)· [2021] KEELRC 2158 (KLR)

Major (Rtd) Joel Kiprono Rop v County Secretary – County Government of Bomet & 2 others [2021] KEELRC 2158 (KLR)

Employment and Labour Relations Court
11 February 2021
650 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court corrected a factual mistake in its judgment but refused to change its outcome, confirming that review only fixes obvious errors, not losses.

What this practically means

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Executive summary

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The applicant sought review of the court's judgment delivered on 9/3/2020, contending that the court erroneously found that the respondents had not filed a replying affidavit in response to the petition. The respondents confirmed that a replying affidavit filed on 14/10/2018 had apparently gone missing from the court file and was not on record at the time of judgment. The court agreed there was an error apparent on the face of the judgment, where it had found that the respondents did not file any response and that the petition was untraversed. The court corrected that error and considered the contents of the replying affidavit, in which the 2nd respondent deponed that it was mandated under Section 59 of the County Governments Act to recruit and fill vacant positions, and that it did so lawfully through advertisement, shortlisting and interviews initiated by line departments via the County Secretary. The respondents also characterised the petitioner as a busy body filing numerous claims and sought dismissal with costs. Applying the principle that a court on review may not rewrite its judgment but may only correct an error on the face of the record and its consequences, the court held that the replying affidavit did not materially alter its findings on the issues determined in the judgment. It declined to alter, review or set aside its findings of fact and law, dismissed the review application, and made no order as to costs. The ruling was delivered online pursuant to COVID-19 directives, with the parties' consent and waiver of Order 21 rule 1 of the Civil Procedure Rules.

Key legal issues

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01

Scope of review jurisdiction

Holding

Review is limited to correcting errors apparent on the face of the record; it does not permit a court to rewrite its judgment

Reasoning

The court framed its review mandate narrowly: it corrected the factual error that a replying affidavit had not been filed, but declined to revisit its substantive findings. Having considered the contents of the replying affidavit, the court held the depositions did not materially alter its conclusions on the issues determined in the judgment, so the findings of fact and law remained untouched.

p. 1
02

Effect of the respondents' replying affidavit

Holding

The replying affidavit, though inadvertently missing from the file, did not materially alter the judgment's findings

Reasoning

The court examined the depositions in the replying affidavit, in which the 2nd respondent asserted lawful recruitment under Section 59 of the County Governments Act, and concluded that the affidavit did not materially alter the findings in answer to the issues set out in the judgment. The error was corrected, but the substantive findings stood.

p. 2

Legal principles established

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  • The mandate of a court seized with a review application is not to rewrite a judgment already delivered but to correct an error on the face of the record and any consequence emanating from that error

Court orders

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  1. 1.Correction of the error apparent on the face of the judgment at paragraph 4, acknowledging that a replying affidavit by the respondents had been inadvertently missing from the file at the time of judgment
  2. 2.Refusal to alter, review or set aside the findings of fact and law under paragraphs 8, 9 and 10 of the Judgment
  3. 3.Dismissal of the application for review of the judgment dated 9/3/2020, with no order as to costs

Authorities

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Legislation

  • County Governments ActSection 59
  • Civil Procedure RulesOrder 21 rule 1
  • Constitution of KenyaArticle 159(2)(d); Article 48
  • Civil Procedure ActSection 18
Jurisdiction invoked
Review of the court's judgment of 9/3/2020; review jurisdiction under civil procedure law (order references review of error apparent on the face of the record); delivery of ruling online grounded on Article 159(2)(d) and Article 48 of the Constitution and Section 18 of the Civil Procedure Act

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, "Major (Rtd) Joel Kiprono Rop v County Secretary – County Government of Bomet & 2 others [2021] KEELRC 2158 (KLR)", Case Analysis (2021). Application dated 28/5/2020 (not fully stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/2158/eng@2021-02-11

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