Sang v Governor Kericho County & 2 others (Petition E001 of 2023) [2024] KEELRC 163 (KLR)
The bottom line
#The Employment and Labour Relations Court refused to change its earlier ruling stopping Kericho County's County Attorney appointment, because the applicants pointed to no clear error and offered no new evidence.
What this practically means
#Executive summary
#Key legal issues
#Whether an error apparent on the face of the record existed in the ruling of 23rd May 2023
No error apparent on the face of the record was demonstrated; the applicants failed to show any error in the appointment of the petitioner as County Attorney.
The applicants relied on paragraph 65 of the ruling and contended the court overlooked the affidavit of Mr. Gideon Mutai. The court noted that the applicants did not contend the petitioner was unqualified for office or that the transition under Section 31(2) of the County Attorney Act was flawed. An error that must be established by long reasoning is not apparent on the face of the record; grievance with a ruling is a matter for appeal, not review.
Whether there was discovery of new and important matter or evidence
No new information was presented to justify review.
The applicants claimed a letter of appointment dated 1.9.2014 for Mr. Gideon Mutai had not been before the court. The court observed that the gazette notice of 27th November 2020 appointing Mutai as County Attorney was on record, and that no new information was placed before it to warrant disturbing the ruling of 23rd May 2023.
Whether the application was competent given the alleged failure to annex an extracted order
The court did not decide on this objection as it dismissed the application on its merits.
The respondent argued that the application was fatally defective for want of a formally extracted order, relying on Hosea Nyandika Mosagwe v County Government of Nyamira and Suleiman Murunga v Nilestar Holdings. The court did not make a specific finding on this preliminary point, electing instead to examine the merits of the review grounds and dismissing the application.
Legal principles established
#- A party seeking review must clearly identify the error apparent on the record; a mere erroneous decision is a ground for appeal, not review.
- Section 31(2) of the Office of the County Attorney Act permits transition into office only for persons meeting the qualifications in the Act.
Court orders
#- 1.The application for review dated 22nd June 2023 is dismissed
- 2.Costs in the petition
- Jurisdiction invoked
- Rule 33(1) of the ELRC Procedure Rules; Sections 80, 1A, 1B and 3A of the Civil Procedure Act; Order 45 Rule 1 and Order 51 Rule 1 of the Civil Procedure Rules; Articles 50(1) and 159(2)(d) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Sang v Governor Kericho County & 2 others (Petition E001 of 2023) [2024] KEELRC 163 (KLR)", Case Analysis (2024). Notice of motion dated 22nd June 2023 in Petition dated 9th February 2023 (Kericho ELRC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/163/eng@2024-02-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.