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ELRCDismissedCause No 2411 of 2017

Njoki v University of Nairobi (Employment and Labour Relations Cause 2411 of 2017) [2023] KEELRC 150 (KLR)

Employment and Labour Relations Court
26 January 2023
1,269 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 refused to review a Kshs 307,800 judgment, ruling that overlooking written submissions doesn't justify review when pleadings and evidence were considered.

What this practically means

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Executive summary

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This is a ruling of the Employment and Labour Relations Court at Nairobi (Anna Ngibuini Mwaure, J) delivered on January 26, 2023 on a notice of motion dated September 8, 2022 brought by the Respondent/Applicant seeking stay of execution, review of the judgment of August 4, 2022 (which awarded the Claimant Kshs 307,800/-), and admission of the Applicant's submissions dated April 18, 2022. The application, supported by the affidavit of advocate Donald Kipkorir, contended that although the submissions were filed on April 19, 2022, the Court registry failed to place them on the file, so the judgment was delivered without consideration of them. The Claimant did not oppose the application, having also filed submissions by March 29, 2022. The Court applied section 33 of the ELRC (Procedure) Rules, which mirrors Order 45 of the Civil Procedure Rules, and reviewed the record, noting that parties had been given until April 7, 2022 to file submissions but none were on file at the time of judgment, and that the Court had nonetheless determined the suit on the pleadings, evidence, law and facts. Relying on Albert Yawa Katsenga v Kenya Revenue Authority and the Court of Appeal decision in Airtel Networks Kenya Ltd v Nyutu Agrovet Ltd, the Court held that failure to consider written submissions caused no prejudice since submissions are neither obligatory nor a prerequisite to determination. Finding no valid ground for review, the Court dismissed orders 3, 4, 5, 6 and 7 of the application with no orders as to costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the failure of the Court registry to place the parties' submissions on the file, resulting in the judgment of August 4, 2022 not considering the Applicant's submissions, constitutes a valid ground for review under section 33 of the ELRC (Procedure) Rules
  2. 2.Whether the failure to consider the submissions prejudiced the Applicant

Key legal issues

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01

Whether omission of the parties' submissions from the court file warranted review of the judgment

Holding

No - the court considered pleadings, evidence, law and facts; non-consideration of submissions caused no prejudice and is not a ground for review

Reasoning

The court had given parties until April 7, 2022 to file submissions but none were on the file when judgment was written. Rather than delay justice, judgment was delivered on the pleadings and evidence. Applying its own earlier decision in Albert Yawa Katsenga and the Court of Appeal decision in Airtel Networks v Nyutu Agrovet, submissions are neither obligatory nor a prerequisite; their omission caused no prejudice. No ground under section 33 of the ELRC (Procedure) Rules was established.

p. 3

Legal principles established

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  • Failure by the court to consider written submissions does not, where the court considered the pleadings, evidence, law and facts, constitute an error apparent on the face of the record or prejudice justifying review

Court orders

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  1. 1.Orders 3, 4, 5, 6 and 7 of the notice of motion application dated September 8, 2022 are dismissed
  2. 2.No orders as to costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

Wrote the judgment

Jurisdiction invoked
Section 33 of the Employment and Labour Relations Court (Procedure) Rules; Order 45 Rule 1 and Order 51 Rule 1 of the Civil Procedure Rules

Relief refused

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Stay of execution of the judgment and decree delivered on August 4, 2022 (order 3)

No valid reason for review established; application dismissed

p. 3

Review of the judgment of August 4, 2022 awarding the Claimant Kshs 307,800/- (order 4)

Failure to consider submissions did not prejudice the parties; pleadings, evidence, law and facts were considered

p. 3

Admission of the Applicant's submissions dated April 18, 2022 (order 5)

Application dismissed for lack of valid grounds for review

p. 3

Costs

No orders as to costs (costs of the application - 'costs in the cause' sought but application dismissed with no orders as to costs)

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The Court finds there is no valid reason under the circumstances to grant the review orders and as such orders 3, 4, 5, 6 and 7 of the notice of application dated September 8, 2022 are dismissed with no orders as to costs.
p. 3Disposition - dismissal of review application
Failure to consider submissions of the Respondent does not in my view prejudice the Respondent at all since all facts and law in the case are considered.
p. 3Non-consideration of submissions is not prejudice justifying review
written submissions are neither obligatory nor a prerequisite to the hearing and determination of an appeal under the Act and the Rues.
p. 3Submissions not a prerequisite to determination (Court of Appeal, cited with approval)

Issues in the judgment

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minor

The quantum of the judgment is stated inconsistently within the judgment - once as Kshs 307,800/- and once as Kshs 307,000/-

minor

The roles are confusingly stated: the Applicant on the motion is described as 'Respondent/Applicant' while the Claimant is described as 'Respondent Claimant'

minor

Date of filing of the Applicant's submissions is inconsistently given as April 18, 2022 (in the prayer) and April 19, 2022 (in the affidavit)

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, "Njoki v University of Nairobi (Employment and Labour Relations Cause 2411 of 2017) [2023] KEELRC 150 (KLR)", Case Analysis (2023). Cause No 2411 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/150/eng@2023-01-26

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