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ELRCDismissedPetition dated 2015 (Nairobi Registry; formerly Nyeri Registry)· [2023] KEELRC 1013 (KLR)

Ndwiga v Principal Secretary, Ministry of Health & another (Petition 137 of 2021) [2023] KEELRC 1013 (KLR)

Employment and Labour Relations Court
27 April 2023
OKOcharo Kebira
3,274 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~13 min to read original · ~4 min brief

The bottom line

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The Employment and Labour Relations Court refused to add 23 forgotten interns to a 2015 case, ruling that a seven-year delay and the wrong legal procedure could not fix the mistake.

What this practically means

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Executive summary

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The Petitioner, suing on behalf of Clinical Officer Interns in a constitutional petition before the Employment and Labour Relations Court, applied by notice of motion dated 1st May 2022 for rectification of the court record and of an order issued on 4th September 2015 so that the petitioners would read 938 Clinical Officer Interns instead of 914. She contended that 23 interns had been inadvertently omitted from the schedule filed in 2015 and relied on sections 99 and 100 of the Civil Procedure Act and the court's inherent jurisdiction, citing authorities on the slip rule, counsel's errors and necessary parties. The Respondents opposed through grounds of contention that the application was an afterthought, an abuse of process, and an attempt to join parties through the backdoor more than seven years after proceedings commenced, noting shifting numbers of interns (903, 914, 938) and lack of demonstrated authority from the 23 interns. The Respondents invoked the maxim that equity aids the vigilant. The court, Ocharo Kebira J, held that sections 99 and 100 of the Civil Procedure Act do not apply to constitutional litigation, which is governed exclusively by the 2013 Practice and Procedure Rules, and that those sections address only errors by the court itself, none of which was demonstrated. The court treated the application as a review camouflaged as rectification, found it inordinately delayed at over seven years, and held the petitioner indolent. The application was dismissed on 27th April 2023, with no costs order recorded.

Key legal issues

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01

Applicability of sections 99 and 100 of the Civil Procedure Act to constitutional petitions

Holding

The provisions are inapplicable to constitutional litigation; the 2013 Rules were not intended to run in parallel with the Civil Procedure Act

Reasoning

The court reasoned that after the 2010 Constitution, bespoke practice rules were crafted for constitutional litigation and the drafters of the 2013 Rules did not envisage two parallel procedural regimes. Further, sections 99 and 100 target clerical or arithmetical mistakes by the court itself, and no court error was asserted in the 4th September 2015 order.

p. 6
02

Whether the application was a disguised review and whether delay defeats it

Holding

The court treated the application as a review camouflaged as rectification and dismissed it for inordinate delay

Reasoning

Because the application sought to alter the substance of an order made in 2015, it was in substance a review. A vital consideration for review is timeliness; filed over seven years later, the application depicted the petitioner as indolent, and equity aids not the indolent but the vigilant.

p. 6

Legal principles established

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  • Procedure under the Civil Procedure Act and its Rules is inapplicable to constitutional litigations and applications arising thereunder, which are governed by the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013
  • Sections 99 and 100 of the Civil Procedure Act address only errors made by the court itself and cannot be invoked to correct a party's error
  • A delayed application for rectification that is in substance a review will be assessed for timeliness; inordinate delay disqualifies the applicant from equitable relief

Court orders

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  1. 1.The Petitioner's application dated 1st May 2022 is dismissed
  2. 2.A signed copy of the ruling to be availed to each party upon payment of court fees

Authorities

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Legislation

  • Constitution of Kenya 2010Articles 48, 50(1), 159(2)(d)
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013rule 19; rule 5(c)(d)(ii)
  • Employment and Labour Relations Court (Procedure) Rules, 2016rule 9
  • Civil Procedure Actsections 99, 100; section 1B
  • Civil Procedure Rules 2010Order 19 rule 3(1); Order 21 rule 1
  • Advocates (Practice) Rulesrule 9

Cases cited (11)

  • Vallabhdas Karsandas Raninga v Mansukhlal Jivraj & others
    (1965) E.A 780
  • Leonard Mambo Kuria v Ann Wanjiru Mambo
    (2017) eKLR
  • Jersey Evening Post Limited v Ai Thani
    [2002] JLR 542
  • Michael Njoroge "B" & Others v Cinvent Kimani Chege
    1997
  • Gideon Moses Onchwati v Kenya Oil Co Ltd & another
    (2017) eKLR
  • Abigael Barma v Mwangi Theuri
    2013 eKLR
  • Smith v Clay
    (1767) 3 Bro. C.C. 639n.
  • Amon v Raphael Tuck & Sons
    1956 I ALL ER 273
  • Hakika Transporters Services Ltd v Albert Chulah Wamimitaire
    2016 eKLR
  • Pattni v Ali & 2 Others
    CA. No. 354 of 2004 (UR 183/04)
  • Republic v Attorney General & 15 others ex-parte Kenya Seed Company Limited & 5 others
    [2010] eKLR
Jurisdiction invoked
Articles 48 and 50(1) of the Constitution of Kenya 2010; rule 19 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013; rule 9 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, "Ndwiga v Principal Secretary, Ministry of Health & another (Petition 137 of 2021) [2023] KEELRC 1013 (KLR)", Case Analysis (2023). Petition dated 2015 (Nairobi Registry; formerly Nyeri Registry). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1013/eng@2023-04-27

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