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ELRCDismissedNot stated in judgment (Notice of Motion dated 28th November 2022)· [2024] KEELRC 1986 (KLR)
Peter v Volcan Holdings Limited (Cause 1080 of 2015) [2024] KEELRC 1986 (KLR)
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·~3 min to read original · ~4 min briefThe bottom line
#What this practically means
#Executive summary
#The Respondent moved the court by Notice of Motion dated 28th November 2022 seeking review and setting aside of a judgment delivered on 31st May 2019 by Nzioki wa Makau J, together with all consequential decrees and proceedings (including a notice to show cause dated 23rd September 2022), and a de novo hearing. The application, supported by an affidavit of the Respondent's Human Resource Officer, Clement Ndunga, was premised on Rule 33(1) of the ELRC (Procedure) Rules. The Respondent argued that the suit had proceeded ex parte as unopposed on a mistaken belief that it had not filed a Reply, yet a Reply was on record filed on 9th May 2016, making the judgment and execution irregular; it also complained of lack of the 10 days' notice of entry of judgment under Order 22 Rule 6 of the Civil Procedure Rules, and asserted a good defence. The Claimant opposed. Linnet Ndolo J applied the settled parameters for review from National Bank of Kenya Limited v Ndungu Njau, emphasising that review lies only for self-evident errors or omissions on the face of the record, not because another judge could take a different view or because the court misconstrued the law. The court held that the Respondent's real complaint was that the trial Judge reached an erroneous conclusion about its defence - a ground of appeal, not review - and the proper remedy lay in the Court of Appeal. The application was accordingly disallowed with costs to the Claimant.
Key legal issues
#01
Scope of review under Rule 33(1) ELRC (Procedure) Rules
Holding
An allegation that the trial Judge reached an erroneous conclusion on the defence is not a mistake or error apparent on the face of the record justifying review
Reasoning
The court restated the parameters from National Bank of Kenya v Ndungu Njau: an error for review must be self-evident and not require elaborate argument. Disagreement with a judge's conclusion, or a misconstruction of law, cannot found review. The Respondent's remedy was an appeal to the Court of Appeal, so the application was misconceived and was disallowed with costs.
p. 2
Legal principles established
#- A review may be granted only to correct an apparent error or omission on the part of the court that is self-evident; an erroneous conclusion of law is a ground for appeal, not review
Court orders
#- 1.The Respondent's application dated 28th November 2022 is disallowed with costs to the Claimant
- Jurisdiction invoked
- Rule 33(1) of the Employment and Labour Relations Court (Procedure) Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Peter v Volcan Holdings Limited (Cause 1080 of 2015) [2024] KEELRC 1986 (KLR)", Case Analysis (2024). Not stated in judgment (Notice of Motion dated 28th November 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1986/eng@2024-07-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.