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ELRCDismissedNot stated in the judgment· [2023] KEELRC 3138 (KLR)

Maingi v Milicons Limited (Civil Appeal E043 of 2022) [2023] KEELRC 3138 (KLR)

Employment and Labour Relations Court
20 November 2023
1,514 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Respondent filed an application seeking review and/or variation of the Court's judgment of 28th March 2023, invoking rule 33 of the Employment and Labour Relations Court (Procedure) Rules, 2016 on grounds of mistake or error apparent on the face of the record, need for clarification, and other sufficient reasons. The application was supported by the affidavit of Stephen Kitheka Maingi, the Appellant, who complained that the judgment was silent on the prayer for service pay (partly paid at Kshs 16,800/=), silent on interest on the award, unclear on applicable statutory deductions, contradictory regarding the certificate of service, deficient on damages for unfair termination and redundancy procedure, and contained arithmetical errors on underpayments. The Respondent opposed, asserting there was no agreement for service pay, that the Appellant had not disclosed full payments including an ex-gratia payment of Kshs 33,500, that costs were a discretionary matter, and that the issues were the subject of an appeal, amounting to an attempt to appeal through the back door. The Court considered rule 33 and authorities on 'sufficient reason', holding that such reason must be analogous to discovery of new evidence or error on the face of the record. Finding no error or clarification required, the Court held that the complaints went to the discretion of the trial court and could only be challenged on appeal, as the Court cannot sit on appeal on its own decision. The application was dismissed with costs.

Key legal issues

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01

Whether the grounds raised disclosed a mistake or error apparent on the face of the record or sufficient reason for review

Holding

The Court found no error apparent on the face of the record, no clarification needed and no sufficient reason; the issues raised fall outside the review jurisdiction

Reasoning

The Court reviewed rule 33 of the ELRC (Procedure) Rules, 2016 and authorities on 'sufficient reason', holding that such reason must be analogous to discovery of new evidence or error on the face of the record. The applicant's complaints about service pay, interest, deductions, quantum of damages and arithmetic went to the trial court's discretion and could only be challenged on appeal, not through review.

p. 4
02

Whether review can be used to challenge discretionary rulings on costs and damages

Holding

Discretionary matters such as each party bearing their own costs and quantum of damages can only be challenged on appeal, not by review

Reasoning

The Court held that the order that each party bear their own costs was a discretionary one, wrongly exercised or not, challengeable only on appeal. Similarly, the claim for damages for unfair termination went to the discretion of the court and could only be challenged on appeal if improperly exercised. Invoking review on such matters would amount to the court sitting on appeal on its own decision.

p. 3

Legal principles established

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  • Sufficient reason for review must be analogous or ejusdem generis to discovery of new evidence or error apparent on the face of the record
  • A court cannot invoke review to sit on appeal over its own decision; matters of judicial discretion are only challengeable on appeal

Court orders

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  1. 1.The application for review dated 6th July 2022 is dismissed
  2. 2.Costs of the application awarded to the Respondent
Jurisdiction invoked
Sections 12(3)(v) & (vi) and 16 of the Employment and Labour Relations Court Act, 2011; rules 17(1) and 33(1)(b)(c) & (d) and (2) of the Employment and Labour Relations Court (Procedure) Rules, 2016

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, "Maingi v Milicons Limited (Civil Appeal E043 of 2022) [2023] KEELRC 3138 (KLR)", Case Analysis (2023). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3138/eng@2023-11-20

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