Pousand v Brandley Ltd & 5 others (Employment and Labour Relations Cause 2465 of 2017) [2024] KEELRC 1745 (KLR)
The bottom line
#A Kenyan employment court dismissed an attempt to overturn a ruling and stay proceedings, warning that unhappy parties must appeal, not relitigate.
What this practically means
#Executive summary
#Key legal issues
#Whether the court had power to review or set aside its own ruling, and whether the grounds were met
The court has power to review its own judgments and orders under Section 16 of the Labour Relations Act and Rule 33 of the ELRC (Procedure) Rules, 2016, but the applicants did not demonstrate any of the statutory grounds; their remedy was an appeal, not setting aside.
The court restated Section 16 of the Labour Relations Act, 2011 and Rule 33 of the ELRC (Procedure) Rules, 2016, and the Court of Appeal's guidance in National Bank of Kenya Ltd v Ndungu Njau that review requires a self-evident error on the face of the record. The applicants only expressed dissatisfaction with the ruling, attached a Notice of Appeal with no proof of filing one year later, and made unsubstantiated fraud claims with no trial-within-a-trial basis shown. Dissatisfaction with a ruling is a ground of appeal, not of review or setting aside.
Whether proceedings should be stayed pending the intended appeal
The prayer for stay could not stand because there was no proof on the record that any appeal had been filed; the prayer was overtaken by events.
The court noted it had already directed that the application be dispensed with before any other application, and that an indefinite stay could not be granted absent proof of a filed appeal. The applicants, though claiming to have lodged an appeal against the ruling, produced only a Notice of Appeal and no filing record after more than a year. The court also weighed the Claimant's entitlement to realize the fruits of a judgment in an old matter against further delay.
Whether the application was an abuse of court process
Yes - seeking setting aside of a ruling when the proper remedy was an appeal amounted to an abuse of process aimed at frustrating execution of the judgment.
The court observed that the matter was old and the Claimant needed to realize the fruits of his judgment. The applicants' pursuit of setting aside, rather than appeal, demonstrated a mission to frustrate those efforts. The court characterised this as an abuse of court processes and advised the applicants to pursue any appeal to the Court of Appeal instead.
Legal principles established
#- Review may only be granted to correct an apparent error or omission that is self-evident and requires no elaborate argument; a mere difference of view or erroneous legal conclusion is not a ground for review
- There must be an end to litigation; a party dissatisfied with a ruling should pursue an appeal rather than seek setting aside of the ruling, and abusive applications to frustrate execution amount to abuse of court process
Court orders
#- 1.The Application dated 10th April, 2022 is found without merit and is dismissed with costs
- Jurisdiction invoked
- Articles 25(c), 27, 48, 50(1) and 159 of the Constitution of Kenya; Section 16 of the Labour Relations Act, 2011; Rules 17, 22, 26(2), 28(1)(g) and 33 of the Employment and Labour Relations Court (Procedure) Rules, 2016
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Pousand v Brandley Ltd & 5 others (Employment and Labour Relations Cause 2465 of 2017) [2024] KEELRC 1745 (KLR)", Case Analysis (2024). Notice of Motion dated 10th April, 2022 (in the suit arising from Notice of Motion dated 21st January, 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1745/eng@2024-07-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.