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ELRCStruck OutNotice of motion dated May 8, 2023 (in a suit concerning ruling dated November 3, 2022)· [2023] KEELRC 1801 (KLR)

Sikalieh (Suing on behalf of Karen and Langata District Association) v Karobia (Cause E562 of 2022) [2023] KEELRC 1801 (KLR)

Employment and Labour Relations Court
27 July 2023
LNLINNET NDOLO
1,713 words in judgment
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The bottom line

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Kenya's Employment Court struck out an application that disguised a request to re-hear a lost ruling as a 'review', warning that review is not a second chance.

What this practically means

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Executive summary

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The Employment and Labour Relations Court at Nairobi (Ndolo J) delivered a ruling on July 27, 2023 striking out a notice of motion dated May 8, 2023. The claimant, the chairman of an association, had previously sought an interlocutory mandatory injunction compelling the respondent, a former office administrator, to release a laptop, passwords, personal data and a hand-over report; that application was dismissed by a ruling dated November 3, 2022 because the claimant's authority as chairperson was in contention. The claimant then filed the present motion seeking review, setting aside and rehearing of that ruling, relying on section 16 of the Employment and Labour Relations Court Act and rule 33(1)(a) of the Procedure Rules, citing as new matter his re-election as chairperson at a meeting of April 7, 2023 and the respondent's subsequent dismissal from employment. The respondent opposed the application as vexatious, arguing it raised no new issues, that remedies sought were substantive and triable, and that the claimant remained an interim chairman with a restricted mandate. The court held that, viewed in its totality, the application sought a setting aside and rehearing of the earlier ruling, which is not the purpose of the review powers. Applying the Supreme Court of India's holding in Ajit Kumar Rath v State of Orisa that review is not analogous to a fresh hearing, the court found the application incompetent, struck it out and awarded costs to the respondent.

Key legal issues

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Whether the circumstances cited (claimant's re-election as chairman and respondent's dismissal) constitute new and important matter warranting review under rule 33(1)(a)

Holding

No; the application does not seek review but the setting aside and rehearing of the earlier ruling, which is outside the scope of review powers

Reasoning

The court held that although the application was anchored on rule 33(1)(a) (discovery of new and important matter), its substance was to set aside the ruling of November 3, 2022 and have the application of August 8, 2022 re-heard. Review is not analogous to a fresh hearing or new arguments, as the Supreme Court of India held in Ajit Kumar Rath v State of Orisa. The proper course for such relief lies elsewhere, not in review, and the application was therefore incompetent.

p. 4

Legal principles established

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  • Review is not a vehicle for re-hearing an application already determined; a party who seeks the setting aside and rehearing of a ruling must use appropriate procedures, not review

Court orders

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  1. 1.The notice of motion dated May 8, 2023 was declared incompetent and struck out
  2. 2.Costs of the application awarded to the respondent

Authorities

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Legislation

  • Employment and Labour Relations Court Actsection 16
  • Employment and Labour Relations Court (Procedure) Rulesrule 33(1) and rule 33(1)(a)
  • Data Protection Act, 2019

Cases cited (1)

  • Ajit Kumar Rath v State of Orisa & others
    9 Supreme Court Cases 596 at page 608
Jurisdiction invoked
Section 16 of the Employment and Labour Relations Court Act and rule 33 of the Employment and Labour Relations Court (Procedure) Rules (review jurisdiction)

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, "Sikalieh (Suing on behalf of Karen and Langata District Association) v Karobia (Cause E562 of 2022) [2023] KEELRC 1801 (KLR)", Case Analysis (2023). Notice of motion dated May 8, 2023 (in a suit concerning ruling dated November 3, 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1801/eng@2023-07-27

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