Mubweka v Sameer Africa Limited (Cause 33 of 2020) [2023] KEELRC 1648 (KLR)
The bottom line
#A Kenyan employment court refused to add compensation for unfair termination after judgment because the employee had never pleaded it in the original case.
What this practically means
#Executive summary
#Key legal issues
#Whether the application disclosed grounds for review under Order 45 Rule 1
No ground for review was urged or demonstrated; the application merely sought to have the court change its reasoning and collapsed as unjustified
The applicant did not establish new evidence, an error apparent on the record, or any other sufficient reason. What the claimant really wanted was for the court to substitute its reasoning with a different analysis, which is the province of an appeal, not review. The respondent established that no review ground existed and that the proper remedy was appeal.
Whether the denial of compensatory damages offended article 159(2)(d) on substantive justice
The denial was based on substantive merits, not procedural technicality: compensation was never pleaded, and awarding it would ambush the respondent and breach natural justice
The claimant pleaded and prayed for reinstatement, not compensation, and later abandoned reinstatement in submissions. Awarding unpleaded compensation would have prejudiced the respondent, who had no opportunity to answer that remedy. The omission was a deliberate pleading choice binding the claimant, and the belated submissions offered no guidance on section 49 factors. The substantive-justice provision was therefore not offended.
Whether the application was filed after unreasonable delay
Though no explanation was offered for the about one-and-a-half-month delay, no adverse consequence visited the respondent, so the application was held filed at the earliest opportunity and without unreasonable delay
The respondent argued delay of one and a half months without explanation. However, the court found that no prejudice or adverse consequence was established against the respondent from that delay, and accordingly held the application was filed at the earliest opportunity possible. This finding did not save the application, which failed on the review grounds themselves.
Legal principles established
#- A party cannot obtain through review a remedy that was never pleaded; a court's refusal to award an unpleaded remedy is a merits determination, not a procedural technicality reviewable under Order 45
- Disagreement with a court's reasoning is a matter for appeal, not review
Court orders
#- 1.The application for review dated December 15, 2022 is dismissed with costs
- 2.The Deputy Registrar to cause forthwith return of the court file back to the Mombasa court Registry
- Jurisdiction invoked
- Article 159(2)(d) of the Constitution of Kenya; section 12(3)(iv), (v), (vi) and (viii) of the Industrial Court Act; Order 45 Rule 1 and Order 51 Rule 1 of the Civil Procedure Rules, 2010; sections 1A, 1B and 3A of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mubweka v Sameer Africa Limited (Cause 33 of 2020) [2023] KEELRC 1648 (KLR)", Case Analysis (2023). Not stated in the excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1648/eng@2023-07-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.