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ELRCDismissedNotice of Motion dated December 19, 2022 (Appeal dated June 14, 2022; from Kilgoris SPMCC Labour Cause No. 2 of 2019)· [2023] KEELRC 623 (KLR)

Good Hope Sacco Limited v Kipteng (Employment and Labour Relations Appeal E013 of 2022) [2023] KEELRC 623 (KLR)

Employment and Labour Relations Court
7 March 2023
3,339 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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A Kenyan Sacco lost its bid to revive a dismissed employment appeal because it never told the court the appeal record was missing until after judgment.

What this practically means

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Executive summary

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The Appellant/Applicant, a Sacco society, moved the ELRC by Notice of Motion dated December 19, 2022 seeking vacation and review of the Court's judgment of December 8, 2022 dismissing its appeal (dated June 14, 2022) against a decision in Kilgoris Senior Principal Magistrate's Court Labour Cause No. 2 of 2019, and an order calling for the trial court file. The applicant argued the appeal was dismissed on a technicality for want of a record of appeal, that it had applied for typed proceedings which were never supplied, and that dismissal would allow persons who allegedly defrauded the Sacco to benefit, citing authorities on substantive justice and the court's wide discretion. The Respondent opposed, arguing no error apparent on the record existed, the application failed to invoke Section 80 of the Civil Procedure Act and Order 45, judgment was not annexed, the deponents lacked authority and locus, the matter was res judicata and an abuse of process given concurrent and multiple suits, and sought punitive costs. The court applied Rule 33(1) of the ELRC Rules 2016 on review. It found the applicant never raised the missing record at directions stages, was willing to proceed without the evidence, and made no request for the trial court file; the applicants failed themselves. Dismissing the application with costs on March 7, 2023, Wasilwa J held no new evidence or sufficient reason justified review.

Key legal issues

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01

Whether the conditions for review under Rule 33(1) ELRC Rules were satisfied

Holding

The application failed; no new evidence was placed before the court and no sufficient reason was shown

Reasoning

The court applied Rule 33(1) of the ELRC Rules 2016, which allows review for discovery of new and important matter, error apparent on the face of the record, need for clarification, or other sufficient reason. The applicant argued the appeal was dismissed for want of a record of appeal, but the court found that when directions were given the applicants were present and never indicated the record was incomplete; they were willing to proceed without the evidence on which they wanted the appeal decided. No new evidence was tabled.

p. 7
02

Whether the court erred in declining to call for the trial court file

Holding

No request was made for the trial court file; the applicants failed themselves

Reasoning

The applicant claimed it had asked the court to call for the Kilgoris trial court file and that refusal created an environment for fraud. The court found as a fact that no such request was made, and that failure to produce a record of appeal implied an error from the word go which was never raised orally or in writing. The court held the applicants failed themselves in the case.

p. 7

Legal principles established

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  • Review may only issue where discovery of new and important matter, error apparent on the face of the record, need for clarification, or other sufficient reason is demonstrated
  • A party who proceeds to hearing without a record of appeal cannot later seek review on the ground that the record was missing

Court orders

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  1. 1.The application for review is dismissed with costs

Authorities

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Legislation

  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 165(6)
  • Civil Procedure ActSections 1A, 1B, 3, 3A
  • Civil Procedure ActSection 80
  • Civil Procedure ActSection 90
  • Civil Procedure RulesOrder 45 Rules 1 & 2; Order 51; Order 19 Rule 3
  • Employment and Labour Relations Court (Procedure) RulesRule 33(1)
  • Advocates Practice RulesRule 9

Cases cited (8)

  • Wachira Karani v Bildad Wachira
    [2016] eKLR
  • Stephen Boro Gitiha v Family Finance Building Society and 3 others
    Nairobi Court of Appeal case no 263 of 2009
  • Patel v EA Cargo Handling Services Limited
    [1974] EA 75
  • Philip Chemwolo & Another v Augustine Kubede
    [1986] KLR
  • Suleiman Murunga v Nilesta Holdings Limited & Another
    [2015] eKLR
  • Julius Mukami Kanyoko & 2 others v Samuel Mukua Kamere & Another
    (2014) eKLR
  • Simon Isaac Ngugi v Overseas Courier Services (K) Limited
    [1998] eKLR
  • Moijo Matanya Ole Keiwua v Chief Justice of Kenya & others
    [2008] eKLR
On appeal from
Kilgoris Senior Principal Magistrate's Court
Labour Cause No. 2 of 2019
Jurisdiction invoked
Rule 33(1) of the ELRC (Procedure) Rules, 2016; Article 159(2)(d) of the Constitution; Sections 1A, 1B, 3, 3A of the Civil Procedure Act

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, "Good Hope Sacco Limited v Kipteng (Employment and Labour Relations Appeal E013 of 2022) [2023] KEELRC 623 (KLR)", Case Analysis (2023). Notice of Motion dated December 19, 2022 (Appeal dated June 14, 2022; from Kilgoris SPMCC Labour Cause No. 2 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/623/eng@2023-03-07

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