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ELRCDismissedCause No E1070 of 2021· [2024] KEELRC 713 (KLR)

Ochieng v Tuko Media Limited (Cause E1070 of 2021) [2024] KEELRC 713 (KLR)

Employment and Labour Relations Court
4 April 2024
LNLinnet Ndolo
1,517 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employment court refused to reopen a Kshs. 853,704 unfair termination award, ruling that review applications cannot be used to launch new claims.

What this practically means

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Executive summary

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Following a judgment delivered on 21st September 2023 in which the court awarded the Claimant Kshs. 853,704 as compensation for unlawful and unfair termination of employment, the Respondent filed a Notice of Motion dated 17th November 2023 seeking review, vacation and/or setting aside of the judgment. Supported by an affidavit of the Respondent's Managing Director, Julia Majale, the application alleged that the Claimant had breached non-competition and non-solicitation clauses of his employment contract by working with Lynn Ngugi, a former employee running a competing YouTube channel, both before and after termination, and that the Claimant had misled the court by claiming to be unemployed. The Claimant opposed the application as a disguised counterclaim, denied membership of Facebook, noted that the annexed contract was in the name of Pauline Wanjiru Mbugua, and argued that since his employment ended by redundancy, misconduct could not be introduced at the review stage. The court held that the applicable law was Section 16 of the Employment and Labour Relations Court Act and Rule 33 of the ELRC (Procedure) Rules, not the Civil Procedure Act provisions both parties cited. Applying the settled test that review lies only for a self-evident error apparent on the face of the record, the court found that what the Respondent sought was not review but a full retrial, seeking to change the character of the case by introducing breach of contract that never featured in the suit. The application was held to be an abuse of the review provision and was dismissed with costs to the Claimant.

Key legal issues

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Whether the alleged discovery of the Claimant's breach of non-competition and non-solicitation clauses constitutes new and important matter warranting review under Rule 33

Holding

No. The application does not seek correction of an error but a full retrial and introduction of a new claim of breach of contract, which is an abuse of the review provision.

Reasoning

The court applied the test from National Bank of Kenya v Ndungu Njau and Nyamogo & Nyamogo v Kogo that review lies only for a self-evident error apparent on the face of the record. The Respondent's grievances concern alleged breach of contract and alleged misleading of the court, matters requiring elaborate argument and evidence, and which did not feature in the original suit. Inviting the court to revisit its substantive award on that basis would transform review into an appeal or retrial, which the court lacks power to grant.

p. 4

Legal principles established

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  • Review is confined to correcting an apparent error or omission that does not affect the substance of a judgment; it is not an avenue for a second look at the decision or for a retrial.
  • A court that has fully rendered itself on the dispute presented by the parties has no power to re-open the case in the manner sought through a review application that seeks to change the character of the case.

Court orders

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  1. 1.The Respondent's Notice of Motion dated 17th November 2023 is dismissed with costs to the Claimant

Authorities

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Legislation

  • Civil Procedure ActSection 80
  • Civil Procedure RulesOrder 45
  • Employment and Labour Relations Court ActSection 16
  • Employment and Labour Relations Court (Procedure) RulesRule 33(1)

Cases cited (2)

  • National Bank of Kenya Limited v Ndungu Njau
    [1997] eKLR
  • Nyamogo and Nyamogo Advocates v Kogo
    (2001) EA 173
Jurisdiction invoked
Section 16 of the Employment and Labour Relations Court Act and Rule 33 of the Employment and Labour Relations Court (Procedure) Rules (review jurisdiction)

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, "Ochieng v Tuko Media Limited (Cause E1070 of 2021) [2024] KEELRC 713 (KLR)", Case Analysis (2024). Cause No E1070 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/713/eng@2024-04-04

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