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ELRCDismissedCause No 1358 of 2018· [2024] KEELRC 551 (KLR)

Munyua v Industrial Promotion Services (K) Limited & another (Cause 1358 of 2018) [2024] KEELRC 551 (KLR)

Employment and Labour Relations Court
8 March 2024
SRStella Rutto
2,361 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to review its own judgment, ruling that ignored written submissions are not enough to reopen a decided case.

What this practically means

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Executive summary

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Following a judgment of 6th October 2023 in which the court found the Claimant's termination unfair and awarded her a total of Kshs 3,000,000.00, corrected on 27th November 2023 to Kshs 3,900,000.00, the 1st and 2nd Respondents applied for review under Rule 33(1)(d) of the Employment and Labour Relations Court (Procedure) Rules, 2016. Their case, deponed to by counsel Ben Simiyu, was that their written submissions and list of authorities, filed on 13th September 2023 and served the following day, were missing from both the physical record and the online portal and were therefore never considered. They attributed the late filing to a misheard virtual court direction, internet connectivity problems, and an honest mistaken belief as to the deadline. The Claimant opposed, contending the application was incompetent, that no new evidence had been placed before the court, and that no error apparent on the face of the record had been identified. The court identified a single issue: whether the Applicants had satisfied the requirements for review. It held that review grounds are restricted and that 'sufficient reason' must be analogous to the enumerated statutory grounds, applying National Bank of Kenya v Ndungu Njau and the principles in Ajit Kumar Rath via the Apollo Mboya decision. Submissions do not constitute evidence and cannot be new matter under Rule 33(1)(a); no error apparent on the record or need for clarification was shown; and the issue of the 2nd Respondent's necessity was immaterial since no adverse orders were made against her. The application dated 8th November 2023 was dismissed with no orders as to costs. Judgment delivered at Nairobi on 8th March 2024 by Stella Rutto, Judge.

Key legal issues

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01

Whether non-consideration of a party's submissions due to their non-receipt constitutes sufficient reason for review under Rule 33(1)

Holding

No. The grounds for review are restricted; submissions are not evidence, and no error apparent on the face of the record, mistake, or need for clarification was shown

Reasoning

The court noted the submissions were missing when judgment was written, but held that Rule 33(1) grounds are restricted and review jurisdiction is limited. Submissions cannot be new evidence under Rule 33(1)(a) since with due diligence they could have been produced. The Applicants did not demonstrate an error apparent on the face of the record or that the judgment required clarification. Following National Bank of Kenya v Ndungu Njau and Ajit Kumar Rath, 'sufficient reason' must be analogous to the enumerated grounds. The alleged party-issue (necessity of the 2nd Respondent) was immaterial since no adverse orders were made against her.

p. 5

Legal principles established

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  • Submissions do not constitute evidence and cannot found a review as new and important matter
  • 'Any other sufficient reason' for review must be analogous to the grounds specified in the rule

Court orders

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  1. 1.The Applicants' Application dated 8th November 2023 is dismissed
  2. 2.No orders as to costs

Authorities

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Legislation

  • Employment and Labour Relations Court (Procedure) Rules, 2016Rule 33(1)
  • Civil Procedure RulesOrder 45 Rule 1; Order 21 Rule 1
  • Constitution of KenyaArticles 159(2)(d), 48
  • Civil Procedure ActSection 1B

Cases cited (6)

  • Francis Origo & another v James Kumali Mungala
    (2005) eKLR
  • Mau Resort v Narok County Government
    (2021) eKLR
  • National Bank of Kenya Ltd vs Ndungu Njau
    [1997] eKLR
  • Zablon Mokua v Solomon M. Choti & 3 others
    [2016] eKLR
  • Republic v Advocates Disciplinary Tribunal Ex parte Apollo Mboya
    [2019] eKLR
  • Ajit Kumar Rath vs State of Orisa & Others
    9 Supreme Court Cases 596 at Page 608
Jurisdiction invoked
Rule 33(1) 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, "Munyua v Industrial Promotion Services (K) Limited & another (Cause 1358 of 2018) [2024] KEELRC 551 (KLR)", Case Analysis (2024). Cause No 1358 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/551/eng@2024-03-08

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