Njuguna & 3 others (Suing on their own behalf and on behalf of 63 other former employees of the Directorate of Civil Aviation, a department within the Ministry of Transport and Communications) v Attorney General & 2 others (Judicial Review Application 3 of 2015) [2023] KEELRC 113 (KLR)
The bottom line
#A Kenyan employment court dismissed a late bid to revise a salary arrears ruling, confirming that review only fixes obvious errors—not disagreements requiring an appeal.
What this practically means
#Executive summary
#Key legal issues
#Whether the alleged wrong cut-off date in the tabulation of salary arrears is an error apparent on the face of the record
It is not; at best it is an erroneous decision or wrong view of the law, which is a ground for appeal and not for review
The Court relied on National Bank of Kenya v Ndungu Njau and Nyamogo & Nyamogo v Kogo, holding that an error apparent on the record must be self-evident and not require elaborate argument. Where a possible view was adopted in the original judgment, another possible view does not constitute reviewable error. The Applicant's true complaint was with the tabulation parameters, a matter that could only be pursued on appeal, not review.
Whether an alleged error pervading the whole judgment can be cured on review
No; setting aside an entire judgment cannot be achieved in the arena for review
The judgment of October 27, 2017 merely tabulated the earlier award pursuant to the Court of Appeal's directions; the Court was not required to reopen substantive findings. If the tabulation parameters were wrong, the entire judgment would be wrong, and the Applicant's own prayer to set aside the judgment confirmed that such relief lay outside review.
Whether the delay of close to two years in filing the application was excused
No; the delay was unexplained and therefore unreasonable and inexcusable
Relying on Unilever Tea (K) Limited v Richard Ombati Kiboma, the Court noted the application was filed close to two years after the October 27, 2017 judgment, contrary to rule 33's requirement of application within reasonable time, and no sufficient explanation was offered.
Legal principles established
#- Review is not a vehicle for a second look at a decision, but only for correcting obvious errors apparent on the record
- Delay in bringing a review application must be sufficiently explained; unexplained delay is unreasonable and inexcusable
Court orders
#- 1.The 2nd respondent's application dated March 15, 2019 is dismissed with costs to the Plaintiffs
- On appeal from
- High Court (original award by Emukule J); Court of Appeal in Civil Appeal (Application) No. 67 of 2010
- Civil Appeal (Application) No. 67 of 2010
- Jurisdiction invoked
- Section 16 of the Employment and Labour Relations Court Act and rule 33 of the Employment and Labour Relations Court (Procedure) Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Njuguna & 3 others (Suing on their own behalf and on behalf of 63 other former employees of the Directorate of Civil Aviation, a department within the Ministry of Transport and Communications) v Attorney General & 2 others (Judicial Review Application 3 of 2015) [2023] KEELRC 113 (KLR)", Case Analysis (2023). Not stated on face of extract (application dated March 15, 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/113/eng@2023-01-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.