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ELRCDismissedNot stated in the judgment· [2024] KEELRC 2037 (KLR)

Abula v Gachanja t/a Showcase Properties (Cause 498 of 2013) [2024] KEELRC 2037 (KLR)

Employment and Labour Relations Court
25 July 2024
JGJACOB GAKERI
2,805 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Employment and Labour Relations Court dismissed an application because the applicant had already appealed the same orders and cannot pursue appeal and review at the same time.

What this practically means

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Executive summary

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This ruling of the Employment and Labour Relations Court at Nairobi, delivered virtually by Dr. Jacob Gakeri J on 25th July 2024, determined a Notice of Motion dated 12th March 2024 by the Respondent/Applicant, Francis Gachanja. He sought enlargement of time to deposit the decretal sum of Kshs.643,627/= as ordered on 14th February 2024, and review, setting aside or variation of that order so that instead he could deposit the original log book of a 3 Axle Trailer (Registration Number ZC 1809, valued at Kshs.900,000/=) owned by Gachanja Muhoro & Sons Ltd as security, on grounds of financial distress. The Claimant opposed, arguing the applicant had no audience having been barred from filing further applications without leave, that the appeal on the impugned ruling had been declined by the Court of Appeal, and that no error on the face of the record justified review. The court framed one issue: whether the application was merited. Reciting the history of serial failed applications since 2017, the court held that the stay of execution was being litigated at the Court of Appeal and was beyond its jurisdiction, that pursuing parallel applications was a discreditable practice, and that under Rule 33(1) of the ELRC (Procedure) Rules, 2016 review is unavailable where an appeal has been preferred. Relying on authorities including Ndithya v Total Kenya Ltd and Serephen Nyasani Menge v Rispah Onsase, the court dismissed the application with costs. It is so ordered.

Key legal issues

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01

Whether the court may entertain an application for review, stay and extension of time when the same orders are the subject of an appeal before the Court of Appeal

Holding

The application fails; the court lacks jurisdiction over the stay which is pending at the Court of Appeal, and review is barred because an appeal has been preferred against the impugned ruling.

Reasoning

The applicant admitted having appealed the ruling of 14th February 2024 and having sought stay at the Court of Appeal, which issued directions. Seeking simultaneous orders in this court keeps two files active for no justifiable reason and is a discreditable, injudicious use of judicial time. Rule 33(1) confines review to cases where no appeal is preferred or allowed, and the authorities confirm appeal and review cannot be pursued together; allowing it would be an abuse of process.

p. 5
02

Whether the orders of 14th February 2024 should be reviewed or varied for substitution of security

Holding

No; no error apparent on the face of the record or other Rule 33 ground was demonstrated.

Reasoning

Rule 33 of the ELRC (Procedure) Rules, 2016 requires discovery of new matter, error apparent on the face of the record, need for clarification or other sufficient reason. The applicant cited none of these grounds and provided no material justifying variation of the deposit order. The court agreed with the Claimant's counsel that no error apparent on the face of the record had been demonstrated to warrant review.

p. 5

Legal principles established

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  • A party cannot simultaneously exercise the right of appeal and the right of review over the same decree or order; having elected to appeal, review is unavailable.
  • Review under Rule 33(1) of the ELRC (Procedure) Rules, 2016 lies only where no appeal is preferred or no appeal is allowed.

Court orders

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  1. 1.The Notice of Motion dated 12th March, 2024 is dismissed with costs

Authorities

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Legislation

  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Employment and Labour Relations Court (Procedure) Rules, 2016Rule 33(1)
  • Civil Procedure Rules, 2010Order 50 Rule 6
  • Civil Procedure Rules, 2010Order 42; Order 45 Rules 1 and 2; Order 21 Rule 1
  • Civil Procedure Act (Chapter 21, Laws of Kenya)Sections 1A, 1B, 3A, 80(a) and (b)

Cases cited (11)

  • Jayesh Hasmukh Shah v Narin Haira & another
    (2015) eKLR
  • Mohamed Ali Osman T/A Hanan Petroleum v Juanco Group Ltd
    Civil Appeal No. 044 of 2021
  • Mwaura Karuga T/A Limit Enterprises v Kenya Bus Services Ltd
    (2015) eKLR
  • Arun C. Sharma v Ashana Raikundalia T/A Raikundalia & Co. Advocates
    (2015) eKLR
  • Nicholas Kiptoo Arap Salat v Independent Electoral and Boundaries Commission & others
    (2014) eKLR
  • HA v LB
    (2022) eKLR
  • Ndithya v Total Kenya Ltd Misc. App.
    E2018 OF 2021 (2022) KEHC 10080 KLR
  • Serephen Nyasani Menge v Rispah Onsase
    (2018) eKLR
  • Martha Wambui v Irene Wanjiru Mwangi & another
    (2015) eKLR
  • Multichoice (K) Ltd v Wananchi Group (K) Ltd & 2 others
    (2020) eKLR
  • Orero v Seko
    (1984) KLR 238
Jurisdiction invoked
Article 159(2)(d) of the Constitution of Kenya; Rule 33 of the Employment and Labour Relations Court (Procedure) Rules, 2016; Order 50 Rule 6 of the Civil Procedure Rules, 2010; Sections 1A, 1B and 3A of the Civil Procedure Act

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, "Abula v Gachanja t/a Showcase Properties (Cause 498 of 2013) [2024] KEELRC 2037 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2037/eng@2024-07-25

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