Muliango v Masaka (Cause 989 of 2018) [2023] KEELRC 2722 (KLR)
The bottom line
#A Kenyan employment court refused to reopen a judgment, ruling that missed hearings, technical excuses, and appeals already filed don't justify review.
What this practically means
#Executive summary
#Key legal issues
#Competency of the review application
The application was incompetent: it identified no part of the judgment for review and the grounds were not analogous to those in Rule 33(1)(a)-(c).
Rule 33(1)(d) permits review for 'any other sufficient reason', but the court held, following Ajit Kumar Rath, Sadar Mohamed and Tokesi Mambili, that such reason must be analogous to the enumerated grounds, construed ejusdem generis. The alleged power fluctuations were not shown to be so. Further, the applicant had lodged a Notice of Appeal, and review and appeal against the same judgment cannot coexist; pursuing both amounts to an abuse of process.
Merits of the review threshold
The applicant failed on a balance of probabilities to establish entitlement to review.
The applicant's non-attendance on 1st February 2023 followed two adjournments already granted at her instance; her counsel participated throughout and raised no objection to the closure of her case, and no evidence of the alleged power fluctuations was adduced. Moreover, the application came more than four months after directions were issued, only after judgment.
Setting aside the judgment under Order 12 Rule 7
The discretionary power to set aside a judgment was not merited on the facts.
The applicant was represented by counsel throughout, who in fact applied for adoption of her witness statement on 1st February 2023; no constitutional violation or irregularity was alleged; the application was made only after judgment; and the applicant did not demonstrate when power and internet connectivity in Zimbabwe had stabilised to guarantee expeditious disposal if the judgment were set aside.
Legal principles established
#- The phrase 'any other sufficient reason' in Rule 33(1)(d) must be construed ejusdem generis with the preceding grounds in Rule 33(1)
- A party who has elected to appeal a judgment cannot simultaneously pursue review of the same judgment
- Review proceedings are not an appeal and cannot be used to give a losing party a second innings
Court orders
#- 1.The Notice of Motion dated 14th June, 2023 is dismissed
- 2.Each party to bear their own costs
- Jurisdiction invoked
- Section 12 of the Employment and Labour Relations Court Act; Rules 17 and 34 of the Employment and Labour Relations Court (Procedure) Rules, 2016; Order 42 Rule 6 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Muliango v Masaka (Cause 989 of 2018) [2023] KEELRC 2722 (KLR)", Case Analysis (2023). Notice of Motion dated 14th June, 2023 (in the principal suit; suit number not stated in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2722/eng@2023-11-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.