Okiya Omtatah Okoiti v Public Service Commission & 3 others [2021] KEELRC 2299 (KLR)
The bottom line
#A Kenyan court refused to rewrite its earlier ruling, confirming that disagreements with a judgment belong on appeal, not in a review application.
What this practically means
#Executive summary
#Key legal issues
#Locus standi of a stranger to apply for review
The objection that the applicant was a stranger without merit; a non-party may apply for review after judgment.
The respondents objected that the applicant had not participated in the proceedings up to judgment. The Court noted case law (Tang Gas Distributors, J M K v M W M, Accredo Ag) permitting a non-party to seek review, and found the objection abandoned since it was not advanced in submissions.
Scope of the review jurisdiction under Rule 33 and section 80
Review cannot be used to correct alleged erroneous conclusions; a complaint of inconsistent findings requiring elaborate argument belongs to the appellate forum.
The Court restated the Rule 33 grounds: discovery of new matter, error apparent on the face of the record, clarification, and sufficient reason. Relying on Origo v Mungala and National Bank of Kenya v Ndungu Njau, it held that misapprehension of law is curable by appeal, not review, and that allowing the motion would amount to the Court sitting on appeal over its own final decision.
Review where a Notice of Appeal has been filed
Review jurisdiction ought not to be invoked where an appeal has been lodged, to allow the appellate process to proceed.
The petitioner had filed a Notice of Appeal on 27 October 2020. The Court held that under section 80 of the Civil Procedure Act the review jurisdiction should not be invoked in such circumstances, so the appellate process could run its course.
Legal principles established
#- An erroneous conclusion of law or evidence is not a ground for review but may be a ground for appeal
- A court should not invoke its review jurisdiction to reconsider the merits of its final decision where an appeal has been lodged; the proper remedy is appeal unless the error is apparent on the face of the record
- Even a person who was not a party to proceedings may in appropriate circumstances apply for review after judgment
Court orders
#- 1.The Court declines to review the judgment delivered on 16 October 2020
- 2.The Motion dated 27 October 2020 is dismissed with costs
- Jurisdiction invoked
- Rule 33 of the Employment and Labour Relations Court (Procedure) Rules, 2016 read with section 80 of the Civil Procedure Act (review jurisdiction)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Okiya Omtatah Okoiti v Public Service Commission & 3 others [2021] KEELRC 2299 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/2299/eng@2021-01-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.