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ELRCDismissedNot stated in the judgment· [2022] KEELRC 1435 (KLR)

Ober & another v County Government of Homa Bay (Cause 39 of 2013) [2022] KEELRC 1435 (KLR)

Employment and Labour Relations Court
22 June 2022
RSRADIDO STEPHEN
821 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 ruled you cannot pursue an appeal and a review of the same decision at the same time — you must pick one path only.

What this practically means

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Executive summary

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This was a ruling on a Motion dated 10 March 2022 by the 1st Claimant in an employment dispute before the Employment and Labour Relations Court at Kisumu, seeking review of the Court's Ruling of 23 February 2022. The Claimants asked the Court to review, in particular, paragraph 13 of the Ruling, which they said contained an error apparent on the face of the record: the Court had stated that the Claimants admitted receiving payments of Kshs 1,637,861/- and Kshs 1,076,573/- respectively, whereas they contended the correct figures were Kshs 1,255,140/- and Kshs 844,020/-. They also sought to set aside orders expunging a County Labour Officer computation from the record, to compel a fresh joint computation, and to have the County Labour Officer present the report personally. The Respondent opposed the Motion through Grounds of Opposition, contending it did not meet the threshold for review, was vexatious and an abuse of process, and invoked the wrong provisions of law. Although directed to file submissions, none were on record. The Court noted that on 1 March 2022 the Claimants had lodged a Notice of Appeal against the very Ruling they sought to review, before filing the Motion on 10 March 2022. Relying on Section 80 of the Civil Procedure Act and the Court of Appeal decisions in University of Eldoret v Hosea Sitienei and Fahim Yasin Twaha v Timamy Issa Abdalla, the Court held that a litigant must elect between review and appeal and cannot pursue both concurrently. The Motion was found incompetent and an abuse of the court process, and was dismissed with costs to the Respondent.

Key legal issues

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01

Whether review could be sought while an appeal had been lodged against the same ruling

Holding

The review application was incompetent and an abuse of the court process because the Claimants had lodged a Notice of Appeal against the ruling sought to be reviewed before filing the review Motion.

Reasoning

Section 80 of the Civil Procedure Act contemplates review where an appeal is allowed but none has been preferred. The Claimants lodged a Notice of Appeal on 1 March 2022 and then filed the review Motion on 10 March 2022. The Court adopted the Court of Appeal's holding in University of Eldoret that a litigant with two options must choose one, and the unchosen option is not available later. Concurrent pursuit of review and appeal would protract litigation and defeat finality.

p. 2

Legal principles established

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  • A litigant faced with two options of review or appeal must settle on one; concurrent pursuit of both is an abuse of judicial process and the option not chosen is not available later.

Court orders

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  1. 1.The Motion dated 10 March 2022 is dismissed with costs to the Respondent

Authorities

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Legislation

  • Civil Procedure ActSection 80

Cases cited (2)

  • University of Eldoret & Ar v Hosea Sitienei & 3 Ors
    (2020) eKLR
  • Fahim Yasin Twaha v. Timamy Issa Abdalla & 2 Others
    [2015] eKLR
Jurisdiction invoked
Section 80 of the Civil Procedure Act (review jurisdiction)

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, "Ober & another v County Government of Homa Bay (Cause 39 of 2013) [2022] KEELRC 1435 (KLR)", Case Analysis (2022). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1435/eng@2022-06-22

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