Rotich & 3 others v Governor, County Government of Kericho & another (Cause 42, 43, 44 & 45 of 2018 (Consolidated)) [2023] KEELRC 1344 (KLR)

The court accepted that Rule 33 of the ELRC (Procedure) Rules gives it power to review its own judgments and that the applicants identified the alleged error as the failure to determine the three consolidated files. However, it held that review must be sought within a reasonable time. Judgment was delivered on 1/2/2019 and the review application was filed only after the Court of Appeal declined leave to appeal, roughly four years later, which the court considered inordinately long and inexcusable.

The applicants sought to amend their claims because reinstatement was no longer available, their contracts having expired. The court applied Section 90 of the Employment Act, 2007, which requires employment claims to be instituted within three years. Allowing the amendment at that stage would introduce claims arising from the 2017 terminations that were already time-barred, rendering the exercise futile and a waste of judicial time.

The respondents argued that a party cannot pursue an appeal and review simultaneously, having first sought leave to appeal out of time. The court observed that no express provision in the court's rules denies an applicant the opportunity to file both an appeal and a review, but decided the matter principally on delay, noting the judgment was rendered over four years before the review application.