Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCDismissedCause No 195 of 2019· [2024] KEELRC 1987 (KLR)

Omung’ala v Nestle Kenya Limited (Cause 195 of 2019) [2024] KEELRC 1987 (KLR)

Employment and Labour Relations Court
31 July 2024
1,556 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

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

#
The Claimant moved the Employment and Labour Relations Court by Notice of Motion dated 7th April 2020 seeking review and/or variation of a ruling delivered by Makau J on 22nd October 2020 dismissing his suit against the Respondent for misjoinder, and reinstatement of the claim. He alleged an error apparent on the face of the record, in that the court allegedly disregarded a letter of offer linking him to the Respondent, and tendered purportedly new evidence showing he had worked for the Respondent before transfer to another organisation on redundancy. The Respondent opposed through a replying affidavit of Stephen Mokaya, contending the application was defective (being dated six months before the ruling), raised nothing new, was an appeal disguised as review, suffered inordinate and unexplained delay, and that the court was functus officio. The court, per Linnet Ndolo J, held that its review jurisdiction under Section 16 of the ELRC Act and Rule 33 of the Procedure Rules was not attracted: review is confined to correcting self-evident errors, not re-opening substantive decisions of coordinate-jurisdiction judges; a wrong view is a ground for appeal, not review. The alleged new evidence did not meet the due-diligence threshold, and the delay in filing and prosecuting the application was unexplained. The application was dismissed with each party bearing their own costs.

Key legal issues

#
01

Whether an error apparent on the face of the record existed justifying review of the ruling of 22nd October 2020

Holding

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

Reasoning

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.

p. 4
02

Whether new and important matter or evidence justified review

Holding

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

Reasoning

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.

p. 2
03

Whether the unexplained delay defeated the application

Holding

The inordinate delay in filing and prosecuting the application was not explained and rendered it inexcusable

Reasoning

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.

p. 4

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. 1.The Claimant's Notice of Motion dated 7th April 2020 is dismissed
  2. 2.Each party will bear their own costs

Authorities

#

Legislation

  • Employment and Labour Relations Court ActSection 16
  • Employment and Labour Relations Court (Procedure) RulesRule 33(1)

Cases cited (4)

  • National Bank of Kenya Limited v Ndungu Njau
    [1997] eKLR
  • Nyamogo & Nyamogo Advocates v Kogo
    [2001] EA 173
  • Francis Njoroge v Stephen Maina Kamore
    [2018] eKLR
  • Unilever Tea (K) Limited v Richard Ombati Kiboma
    [2021] eKLR
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.