Cornel Opiko K’ambudo t/a Fabrice Lounge v Kenya Hotels & Allied Workers Union & another (Miscellaneous Application E058 of 2021) [2022] KEELRC 1105 (KLR)
The bottom line
#A Kenyan court refused to reopen a decided case, ruling that evidence you could have found yourself doesn't count as genuinely new.
What this practically means
#Executive summary
#Key legal issues
#Whether discovery of new and important matter existed under Rule 33(1)(a) of the ELRC (Procedure) Rules, 2016
No - the evidence was within the Applicant's knowledge and no due diligence was exercised or required
The court held the documents were always in the possession of the Applicant's business partner; the partner's unavailability or the urgency of the filing did not mean the evidence could not with due diligence have been produced. The Rule 33(1)(a) threshold requires the matter to have been outside the applicant's knowledge despite due diligence, which was not met.
Whether the failure to annex documents was an error apparent on the face of the record under Rule 33(1)(b)
No - it is not an error of the court; the court cannot rely on evidence not on record
Relying on National Bank of Kenya Ltd v Ndungu Njau, the court held an error apparent on the face of the record must be self-evident and relate to a correction the court itself needs to make. Counsel's omission to annex exhibits is not such an error; the court could only decide on the evidence actually placed before it.
Whether the Applicant discharged the burden in objector proceedings
No - the Applicant did not prove he held the proclaimed goods on his own account
Even on the new evidence showing the Applicant as a registered proprietor of Fabrice Lounge, he did not disprove ownership of Barizi Bar and Restaurant, the judgment debtor. Citing Grace Wanjiru Mbugua v Philip Karumi Matu, the court held the onus lies on the objector to show possession on his own account, which was not discharged.
Legal principles established
#- Evidence not produced at the hearing of an application because it was within the applicant's knowledge does not constitute discovery of new and important matter for review under Rule 33(1)(a)
- Failure to annex documents to an application is not an error apparent on the face of the record
- In objector proceedings, the objector must show possession of the attached property on his own account, not on account of the judgment debtor
Court orders
#- 1.The Applicant's application dated 10th December 2021 is dismissed
- 2.Costs of the application awarded to the Respondents
- Jurisdiction invoked
- Section 16 of the Employment and Labour Relations Court Act; Rule 33(1) of the ELRC (Procedure) Rules, 2016; Sections 1A, 1B, 3 and 3A of the Civil Procedure Act; Order 40 Rules 1 & 2 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Cornel Opiko K’ambudo t/a Fabrice Lounge v Kenya Hotels & Allied Workers Union & another (Miscellaneous Application E058 of 2021) [2022] KEELRC 1105 (KLR)", Case Analysis (2022). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1105/eng@2022-06-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.