Kenya County Government Workers Union Bungoma County Branch v Bungoma County Public Service Board & another; Nyukuri (Applicant) (Petition 1 of 2019) [2023] KEELRC 1822 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether a stranger to the suit (a concerned citizen/taxpayer) can apply for review of a judgment
Mr. Nyukuri, not being a party or an affected employee, could not seek review and his request for permission was disallowed.
The court held that review is a remedy for persons aggrieved by a decree or order affecting them. Mr. Nyukuri was neither a party, nor an employee, nor related to the employer, and did not demonstrate prejudice beyond that of any other taxpayer. Moreover, the Respondents had already filed a similar review application of which he was aware, making his application unnecessary.
Whether alleged jurisdictional and limitation errors are grounds for review
No. Questions of jurisdiction under section 77 of the County Governments Act, section 87 of the Public Service Commission Act and section 90 of the Employment Act are points of law for appeal, not review.
Following Ferrotech, Pancras T. Swai, Manjula Dhirajlal Soni and Patrick Miano, the court held that a trial judge cannot sit in appeal over his own or a concurrent judge's decision. Jurisdictional and locus standi objections require appellate process; review is confined to the four Rule 33 grounds and errors of law are not among them.
Whether the alleged two conflicting certified lists (463 and 660) constitute error apparent on the face of the record or sufficient reason for review
No. The judgment itself referenced 463 Grievants; the second list emanated from the Respondents' own documents and any contradiction in execution would be a nullity, not a ground to review the judgment.
The court found no ambiguity in the number of workers in the decision being 463, the same number in the petition. The Deputy Registrar's role in execution is administrative; a conflicting list of 663 was not traceable to any court decision. The alleged problems (minors etc.) related to the alleged second list, not the judgment list of 463, which carried national identity numbers.
Whether the review application was brought within reasonable time
A delay of 2 years and 5 months from judgment to application was inordinate, unexplained except by COVID, and tainted with laches, disentitling the Respondents to review.
The judgment was delivered on 13th May 2020; a certificate of order against government issued on 17th February 2022 and a mandamus order on 7th July 2022; the Respondents filed for review only on 30th January 2023, during contempt proceedings. The delay was not satisfactorily explained and the mandamus had not been set aside nor the contempt purged.
Whether the court could nonetheless exercise discretion in public interest
Yes. To protect the workers' interests and clarify implementation, the court directed compliance with the 13th May 2020 judgment based on the list of 463, with verification directions, and held the contempt application in abeyance for 60 days.
Though the review grounds failed, the court used its judicial discretion under Rule 33 to issue procedural orders securing implementation of the judgment: issuance of notice, presentation of original IDs and employment letters, disclosure of last station and supervisor, a register of attendance, and a compliance report within 60 days.
Legal principles established
#- Review lies only on the grounds in Rule 33; points of law such as jurisdiction and limitation are matters for appeal, not review
- An error of judgment on a matter of merit can only be corrected on appeal, not by review
- 'Mistake or error apparent on the face of the record' refers to an evident error requiring no extraneous matter to show its incorrectness
- A judge of concurrent jurisdiction cannot overrule another judge on matters of law or merit in a review
Court orders
#- 1.The court disallowed Mr. Nyukuri's request for permission to seek review of the judgment (prayer 1 of his application)
- 2.The prayer for review of the judgment of Justice Nduma dated 13th May 2020 was declined
- 3.In public interest, the court ordered the Respondents jointly and severally to comply with the judgment of 13th May 2020 and file a report within 60 days on compliance, based on the list of 463 persons
- 4.The 1st Respondent to issue, within 14 days, notice of date and venue where the 463 workers will present themselves with original ID cards and their last casual employment letter
- 5.Workers to disclose their last station of work and immediate supervisor for verification; the 1st Respondent to issue and post notice to the Petitioner and Moses Maelo Muyundi at prominent places within 14 days
- 6.Any of the 463 workers who fail to avail themselves without sufficient reason to be considered as not having been a worker; the 1st Respondent to file in court the register of attendance
- 7.The 1st Respondent to file in court a report on compliance with the directions and the judgment
- 8.The contempt application to be held in abeyance pending the 60 days
- 9.Mention on 28th September 2023 to confirm compliance
- 10.Right of appeal in 30 days
- 11.Parties to be supplied with typed and certified proceedings and the ruling on priority basis on application
- Jurisdiction invoked
- Rule 33 of the Employment and Labour Relations Court (Procedure) Rules, 2016, read with section 80 of the Civil Procedure Act (Cap 21); Article 22 of the Constitution of Kenya, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya County Government Workers Union Bungoma County Branch v Bungoma County Public Service Board & another; Nyukuri (Applicant) (Petition 1 of 2019) [2023] KEELRC 1822 (KLR)", Case Analysis (2023). Bungoma ELRC Petition No. 1 of 2019 (Review Applications). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1822/eng@2023-07-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.