Luke Cheruiyot & 37 others v National Oil Corporation of Kenya [2022] KEELRC 1039 (KLR)
The bottom line
#Kenya's Employment Court refused to review its 2018 judgment because the applicants waited ten months to file and had already appealed.
What this practically means
#Executive summary
#Key legal issues
#Whether the review application was properly before the court, having been filed 10 months after judgment and with a notice of appeal on record
The application was improperly before the court due to inordinate, unexplained delay and the pendency of an appeal; review was declined.
Rule 33(1) requires a review application to be made within reasonable time. The judgment was delivered in December 2018 but the application was filed in October 2019, about 10 months later, with no explanation for the delay. Further, the respondents had filed a notice of appeal and obtained a stay at the Court of Appeal, so any correction of the judgment should be pursued there rather than by way of review.
Whether there is an error on the face of the record which the court can correct by way of review
Although the applicants alleged errors apparent on the face of the record (omission of nine claimants, inclusion of one claimant and mix-up of names), the court declined to exercise its review jurisdiction because of the delay and the pending appeal.
The court accepted that the basis of the application was an alleged error apparent on the face of the record under Rule 33(1)(b). However, it did not proceed to determine the merits of the alleged errors, holding instead that the lateness of the application and the existence of the respondents' appeal meant any correction the applicants seek can be addressed by the Court of Appeal.
Legal principles established
#- A review application under Rule 33(1) must be brought within reasonable time, and unexplained delay of about 10 months after judgment amounts to inordinate delay justifying refusal of review, particularly where an appeal is pending.
- Where a notice of appeal has been filed against a judgment, a review of that judgment by the trial court would conflict with any decision the Court of Appeal may wish to take.
Court orders
#- 1.The application for review of the judgment delivered on 20/12/2018 is declined/dismissed.
- 2.Costs to abide the outcome of the appeal.
- Jurisdiction invoked
- Rule 33(1), (2) & (3) of the ELRC (Procedure) Rules 2016
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Luke Cheruiyot & 37 others v National Oil Corporation of Kenya [2022] KEELRC 1039 (KLR)", Case Analysis (2022). Not stated on the face of the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1039/eng@2022-01-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.