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ELRCDismissedReview Applications arising from ELRC Causes Nos. 241 of 2015, 212 of 2015 and 153 of 2015· [2022] KEELRC 1376 (KLR)

Muriithi & 8 others v Registered Trustees of the Sisters of Mercy(Kenya) t/a The Mater Misericordiae Hospital (Cause 153, 212 & 241 of 2015 (Consolidated)) [2022] KEELRC 1376 (KLR)

Employment and Labour Relations Court
5 July 2022
MOMAUREEN ONYANGO
2,432 words in judgment
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The bottom line

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The Employment Court refused to release withheld judgment money because the applicants raised old arguments instead of new grounds for review.

What this practically means

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Executive summary

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Four consolidated motions by Claimants in ELRC Causes Nos. 241, 212 and 153 of 2015 sought review of an order of 21st May 2020 granting an open-ended stay of execution of decretal sums pending appeal, and release of the decretal sums to them. The Applicants argued the Respondent had filed a Notice of Appeal but no Record of Appeal, that the appeal was unlikely to be heard in the foreseeable future due to judicial shortage, and that they had sufficient security to refund the decretal sums should the appeal succeed. The Respondent opposed, asserting the applications were filed after inordinate delay, sought to re-litigate matters already decided, were barred by res judicata, and that delay in typing proceedings was caused by the Applicants repeatedly retrieving the court file. The court, Onyango J, confirmed jurisdiction under Section 16 of the ELRC Act and Rule 33 of the ELRC (Procedure) Rules, 2016, but held the Applicants had not satisfied any of the Rule 33 prerequisites: the grounds relied upon were not new matter, having been available when the original application was heard; no error apparent on the face of the record was alleged; and the failure to have typed proceedings was attributable to the Applicants' own retrieval of the file, not the Respondent. The applications were dismissed with costs in the appeal.

Key legal issues

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01

Whether the delay in filing the record of appeal and the Applicants' alleged ability to refund the decretal sum constitute sufficient grounds for review

Holding

They do not; these are not new matters and no error apparent on the face of the record was alleged

Reasoning

The Court found the reasons advanced (delay in filing record of appeal and capacity to refund the decretal sum) were information available to the Applicants when the original stay application was heard and could have been adduced then. No discovery of new and important matter, no mistake or error apparent on the record, and no other sufficient reason under Rule 33 was established. The non-typing of proceedings was attributable to the Applicants repeatedly retrieving the file, not the Respondent.

p. 6

Legal principles established

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  • The ELRC has power to review its judgments, awards, orders or decrees but only within the four prerequisites set out in Rule 33 of the ELRC (Procedure) Rules, 2016
  • Grounds that were available and could have been raised at the hearing of the original application do not constitute new matter for review

Court orders

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  1. 1.The applications for review are dismissed
  2. 2.Costs shall be in the appeal

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 48, 50(1), 159(2)(a)(e) and 159(2)(d)
  • Employment and Labour Relations Court Act, 2011Sections 3, 12(3)(viii) and 16
  • Employment and Labour Relations Court (Procedure) Rules, 2016Rule 33(1)(d), (2), (3)
  • Civil Procedure Act, Cap. 21Section 80, Section 1B
  • Civil Procedure Rules, 2010Order 42 Rule 6, Order 45 Rule 1, Order 21 Rule 1

Cases cited (2)

  • Peter Wambugu Kariuki & 16 others v Kenya Agricultural Research Institute
    [2018] eKLR
  • John Peter Kamau Ruhangi v Kenya Reinsurance Corporation
    [2012] eKLR
Jurisdiction invoked
Section 16 of the Employment and Labour Relations Court Act, 2011 and Rule 33 of the Employment and Labour Relations Court (Procedure) Rules, 2016; Articles 48, 50(1) and 159(2)(a)(e) of the Constitution

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, "Muriithi & 8 others v Registered Trustees of the Sisters of Mercy(Kenya) t/a The Mater Misericordiae Hospital (Cause 153, 212 & 241 of 2015 (Consolidated)) [2022] KEELRC 1376 (KLR)", Case Analysis (2022). Review Applications arising from ELRC Causes Nos. 241 of 2015, 212 of 2015 and 153 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1376/eng@2022-07-05

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