Omung’ala v Nestle Kenya Limited (Cause 195 of 2019) [2024] KEELRC 1987 (KLR)
The bottom line
#Kenya's Employment Court dismissed a worker's bid to revive his suit, confirming review applications cannot be used to challenge rulings that should be appealed.
What this practically means
#Executive summary
#Key legal issues
#Whether an error apparent on the face of the record existed justifying review of the ruling of 22nd October 2020
No error apparent on the face of the record was established; the Claimant was in substance seeking setting aside of a substantive ruling, which is beyond the scope of review
The court distinguished between an erroneous decision and an error apparent on the face of the record, relying on National Bank of Kenya v Ndungu Njau and Nyamogo & Nyamogo Advocates v Kogo. The Claimant effectively sought a complete setting aside of a ruling by Makau J, a coordinate-jurisdiction judge. A possible view adopted in the original ruling cannot constitute an apparent error, and a wrong view is a ground for appeal, not review.
Whether new and important matter or evidence justified review
The alleged new evidence did not meet the Rule 33(1) threshold of matter which could not with due diligence have been produced before the ruling
The Respondent showed the purportedly new evidence was available and that the Claimant chose not to avail documentary evidence in response to the dismissal application. The matters raised were already canvassed and considered in the ruling; the application was an appeal disguised as review and an attempt to lodge an appeal through the backdoor.
Whether the unexplained delay defeated the application
The inordinate delay in filing and prosecuting the application was not explained and rendered it inexcusable
Relying on Unilever Tea (K) Limited v Richard Ombati Kiboma, the court held that delay in bringing a review application must be sufficiently explained. Here, the application was dated six months before the ruling it challenged, the Claimant only followed it up more than six months after the ruling, and the Respondent was not served until 2024, over three years after filing. The delay was therefore unreasonable.
Legal principles established
#- Review on the ground of error apparent on the face of the record exists only to correct obvious self-evident errors, not to give the court a second look at its own decision
- A judge of coordinate jurisdiction has no power to interfere with a substantive decision of a brother judge by way of review
- Delay in bringing an application for review must be sufficiently explained, failing which it is unreasonable and inexcusable
Court orders
#- 1.The Claimant's Notice of Motion dated 7th April 2020 is dismissed
- 2.Each party will bear their own costs
- Jurisdiction invoked
- Section 16 of the Employment and Labour Relations Court Act and Rule 33 of the Employment and Labour Relations Court (Procedure) Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Omung’ala v Nestle Kenya Limited (Cause 195 of 2019) [2024] KEELRC 1987 (KLR)", Case Analysis (2024). Cause No 195 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1987/eng@2024-07-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.