China Road and Bridge Corp (Kenya) v Mwangangi (Employment and Labour Relations Appeal E098 of 2021) [2024] KEELRC 2254 (KLR)

Proceedings before the ELRC are governed by the ELRC Procedure Rules, 2016. The Civil Procedure Act and Rules apply only as permitted by those rules, per Johnson Kazungu v Kenya Marine and Fisheries Research Institute. Rule 33 is the proper basis for review. The court would have struck out the application for citing inapplicable provisions but, because the applicant also relied on 'all other enabling provisions of law', it considered the application competent and decided it on the merits.

The impugned ruling was delivered on 27th April 2023 and the practice directions were published on 28th April 2023. Following Adel v Abbysinia Iron & Steel, Malongo v Abbysinia Iron & Steel and Maisha Mabati Mills Ltd v Ondari, the court held that legal instruments are presumed forward-looking and there was no express intention that the directions apply retrospectively. They therefore cannot justify reopening a decision rendered before their publication.

The court reiterated the established grounds for review. The Respondent/Applicant did not suggest an error on the face of the impugned ruling, did not identify an important matter that existed at the time of hearing but could not be brought to the court's attention despite due diligence, and did not contend that the decision required clarification. Absent these grounds, reliance on the practice directions alone could not sustain the review.