Omoke & 106 others v Danree Multihandling Services Ltd & another (Cause 544 of 2017) [2023] KEELRC 1214 (KLR)
The bottom line
#A Kenyan court ruled you cannot ask for review of a review decision—the only option was appeal, and delay killed this case.
What this practically means
#Executive summary
#Key legal issues
#Whether the application was res judicata
The court declined to disturb the earlier ruling of Marete J of 16th September 2022 which had overruled the preliminary objection on res judicata, despite disagreeing with its reasons.
A preliminary objection on res judicata against the motion had been heard and dismissed by Marete J on 16th September 2022, holding the two applications different. No appeal was preferred against that ruling, so although the present judge disagreed with the reasons, he considered himself bound to leave the issue undisturbed and said no more on it.
Whether the application offended Rule 33(6) of the ELRC Rules
Yes. The impugned ruling of 24th May 2019 was itself a decision on an application for review, so a second review was barred.
The ruling of Nzioki Makau J was an order made on an application for review of the dismissal of the suit. Rule 33(6) of the ELRC Rules, in consonance with Order 45 Rule 6 of the Civil Procedure Rules, bars entertaining any subsequent application for review of such an order. The Bethwel Omondi Okal decision was adopted as good law. The applicants' remedy was appeal, which they abandoned.
Whether the application met the legal threshold for review under Rule 33(1)
No. The delay of over two years was unexplained and unreasonable, and no error apparent on the face of the record was demonstrated.
The claimants filed a Notice of Appeal, losing the right to seek review, and delayed over two years without explaining when they instructed new counsel or why they never followed up with their former advocate. Their claimed ignorance of the ruling was undercut by their own admission that they had appointed Bonventure Arema as their court representative. Discretion will not be exercised in favour of an indolent party.
Legal principles established
#- A court exercising its review jurisdiction cannot be asked to review an order made on an application for review.
- An error apparent on the face of the record must be self-evident; a mere erroneous decision or a view that is merely one of two possible views is not a ground for review.
Court orders
#- 1.The notice of motion dated 18th October 2021 was found fatally incompetent pursuant to Rule 33(6) of the ELRC Rules and was dismissed with costs.
- Jurisdiction invoked
- Section 16 of the Employment and Labour Relations Court Act and Rule 33 of the ELRC (Procedure) Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Omoke & 106 others v Danree Multihandling Services Ltd & another (Cause 544 of 2017) [2023] KEELRC 1214 (KLR)", Case Analysis (2023). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1214/eng@2023-05-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.