Khaemba v Board of Management Chebukwa Secondary School (Cause 14 of 2017) [2022] KEELRC 1459 (KLR)
The bottom line
#A Kenyan employment court confirmed you cannot use a review application to re-argue a lost case—only a proper appeal can challenge a judgment's merits.
What this practically means
#Executive summary
#Key legal issues
#Whether the review application met the Rule 33 threshold
It did not; the grounds went to the merits of the judgment
The court examined the 18 grounds of review and found they all alleged error of law and fact in the court's evaluation of evidence and conclusions. Such complaints go to the merits and are matters for appeal, not review under Section 16 of the ELRC Act read with Rule 33 of the 2016 Rules.
Whether the failure to address the certificate of service warranted review
Yes, to that limited extent only; it amounted to an error apparent on the face of the record
The court noted that in its original judgment it had considered all reliefs except the certificate of service, which it described as an error apparent on the face of the record. It therefore corrected the judgment sua sponte to that limited extent, notwithstanding dismissal of the review application.
Whether submissions can constitute new evidence for review
No; the Respondent's position that submissions are not evidence was accepted
The Respondent argued no new evidence within the Applicant's knowledge was discovered and that submissions are not evidence. The court agreed, finding no new evidence or clerical error of calculation to justify review.
Legal principles established
#- An erroneous conclusion of law or evidence is a ground of appeal, not of review
- A party cannot use a review application to re-litigate the merits of a decided judgment
Court orders
#- 1.The Application for review dated 17th January 2022 is dismissed on all grounds for lack of merit
- 2.The Judgment dated 20th December 2021 is corrected to add an order that the Respondent issue the Claimant with a certificate of costs pursuant to Order 51 of the Employment Act
- Jurisdiction invoked
- Section 16 of the Employment and Labour Relations Court Act No. 20 of 2011 as read with Rule 33 of the Employment & Labour Relations Court Rules 2016
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Khaemba v Board of Management Chebukwa Secondary School (Cause 14 of 2017) [2022] KEELRC 1459 (KLR)", Case Analysis (2022). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1459/eng@2022-05-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.