Kenya Petroleum Oil Workers Union v Proto Energy Limited (Employment and Labour Relations Cause E331 of 2022) [2024] KEELRC 231 (KLR)
The bottom line
#Kenya's Employment Court dismissed an employer's review application, confirming you cannot appeal and seek review of the same decision at once.
What this practically means
#Executive summary
#Key legal issues
#Whether the Respondent's application met the threshold for review under Rule 33(1)(b) of the ELRC Procedure Rules
The application did not meet the threshold; the complaints that the court failed to consider the replying affidavit and submissions challenge the merits of the decision and are grounds of appeal, not review.
The court reviewed the authorities on error apparent on the face of the record and held that grievances about the court's assessment or consideration of evidence require reappraisal of the merits, which is a matter for an appellate court. The court affirmed it had considered all pleadings and submissions in its ruling, so no error was demonstrated and the application for review was dismissed.
Whether a party who has filed a notice of appeal may simultaneously apply for review
No. Filing a notice of appeal ousts the right to seek review of the same decision; the review application was therefore incompetent.
Relying on Otieno Ragot & Company Advocates v National Bank of Kenya, Karani & 47 Others v Kijana, and African Airlines International v Eastern & Southern Africa Trade Bank, the court held that once a notice of appeal is in place, a party cannot pursue review while keeping the appeal option open. Although the Respondent later withdrew the notice of appeal, at the time the review application was filed the notice of appeal was in place, rendering the application incompetent.
Whether the court erred by failing to consider the Respondent's replying affidavit and submissions
The court found that it did consider all pleadings and submissions and was well advised in its ruling; no error was made out.
The court noted the check-off forms and deduction letters annexed to the Claimant's supporting affidavit and stated that the main issues - the number of unionisable members and the date of service of the ministerial order - were considered in the ruling. Any dissatisfaction with the ruling's assessment should be pursued by appeal, particularly on verification of unionisable versus non-unionisable members.
Legal principles established
#- It is not permissible to pursue an appeal and an application for review concurrently; filing a notice of appeal ousts the right to seek review of the same decision.
- An erroneous conclusion of law or evidence is not a ground for review but may be a good ground for appeal.
- An error apparent on the face of the record is one that stares one in the face and admits no two opinions; an error requiring long-drawn reasoning is not such an error.
Court orders
#- 1.The Respondent's Notice of Motion dated 20th July 2023 seeking review and/or setting aside of the Ruling and Consequential Orders delivered on 7th July 2023 is dismissed
- 2.Each party to meet their respective costs
- Jurisdiction invoked
- Review jurisdiction under Rule 33(1) of the Employment and Labour Relations Court (Procedure) Rules, 2016 and Order 45 rule 1 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Petroleum Oil Workers Union v Proto Energy Limited (Employment and Labour Relations Cause E331 of 2022) [2024] KEELRC 231 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/231/eng@2024-02-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.