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ELRCDismissedPetition No 297 of 2014· [2023] KEELRC 251 (KLR)

Adul v County Assembly of Kisumu & 5 others (Petition 297 of 2014) [2023] KEELRC 251 (KLR)

Employment and Labour Relations Court
2 February 2023
CBChristine N. Baari
1,530 words in judgment
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The bottom line

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Even with a genuine court error in her favour, a Kenyan worker lost her compensation claim because she waited seven years without a valid excuse.

What this practically means

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Executive summary

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The Applicant, Anne Atieno Adul, moved the Employment and Labour Relations Court at Kisumu by a notice of motion dated November 25, 2022, seeking review of a ruling delivered by Hon. Justice Maureen Onyango on March 21, 2018, which had dismissed her earlier application to assess the quantum of damages awarded in a judgment of Hon. Justice Hellen Wasilwa dated January 12, 2015. That judgment had ordered compensation for violation of her rights but did not quantify the award. The 2018 ruling dismissed the assessment application because the judgment file was not on record. The Applicant argued that the file was now available, that the 2018 ruling was founded on an error apparent on the face of the record, and asked the court to assess damages based on submissions on record. The Respondents, through a replying affidavit of Bill Omondi, opposed the motion, contending that the Applicant had already appealed the ruling, and that under Rule 33 of the ELRC (Procedure) Rules, 2016, a review must be sought within reasonable time, yet the application came ten years after the judgment. The court, Baari J, accepted that the omission to assess quantum was an error apparent on the face of the record. However, the application was fatal on timing: the delay of seven years from the judgment (or four years from the ruling) was inordinate, and the explanations of a lost court file and a fall-out with previous advocates were neither pleaded nor evidenced. Citing authority that a good case cannot cure unexplained delay, the court dismissed the application and made no orders on costs.

Key legal issues

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01

Whether the ruling of March 21, 2018 contained an error apparent on the face of the record

Holding

Yes; the omission was evident on the face of the judgment, which ordered compensation but failed to assess the amount payable

Reasoning

The court found that Justice Wasilwa's judgment of January 12, 2015 ordered compensation for violation of the Applicant's rights but omitted to assess the quantum. Guided by the National Bank of Kenya v Ndungu Njau line of authority, the court accepted that such an omission is a self-evident error capable of correction on review. Thus the threshold of error apparent on the face of the record was satisfied.

p. 3
02

Whether the application was filed within reasonable time under Rule 33(1) of the ELRC (Procedure) Rules

Holding

No; a delay of seven years (or four years from the 2018 ruling) was inordinate and unexplained, so the application failed

Reasoning

Rule 33(1) requires review applications to be brought within reasonable time. The Applicant attributed the delay to a misplaced court file and a fall-out with previous advocates, but these grounds were not pleaded and no evidence of loss of the file was produced. The court held that the Applicant slept on her rights, and that sympathy for a good case cannot cure an unexplained, time-barred application.

p. 3

Legal principles established

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  • Review may be granted only to correct an error or omission that is self-evident and does not require elaborate argument
  • An error apparent on the face of the record must be an obvious and patent mistake, not one establishable by a long-drawn process admitting two opinions
  • A party with a good case but out of time without valid excuse for the delay will lose regardless of merits
  • Failure to act does not constitute good or sufficient cause for delay in seeking review

Court orders

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  1. 1.The application dated November 25, 2022 is dismissed
  2. 2.No orders on costs

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 100
  • Civil Procedure Rules, 2010Order 45 rules 1, 2, 3, 4
  • Employment and Labour Relations Court (Procedure) Rules, 2016Rule 33(1)

Cases cited (6)

  • Bethwel Omondi Okal v Managing Director KPLC and Co.
    [2017] eKLR
  • National Bank of Kenya Ltd v Ndungu Njau
    [1996] KLR 469 (CAK)
  • Chandrakhant Joshibhai Patel v R
    [2004] TLR, 218
  • Kenya Union of Hair and Beauty Salon Workers Union v Metal Crowns Limited
    [2020] eKLR
  • Alibhhai Musajee v Sharifi Mohammed Al-Bet
    Civil Appeal No. 283 of 1998
  • Daphne Parry v Murray Alexander Carson
    [1963] EA 546
Jurisdiction invoked
Sections 1A, 1B and 100 of the Civil Procedure Act and Order 45 rules 1, 2, 3 and 4 of the Civil Procedure Rules, 2010; Rule 33 of the Employment and Labour Relations Court (Procedure) Rules, 2016

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, "Adul v County Assembly of Kisumu & 5 others (Petition 297 of 2014) [2023] KEELRC 251 (KLR)", Case Analysis (2023). Petition No 297 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/251/eng@2023-02-02

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