Tonui & another v Kenya Union of Post Primary Education & another; Registrar of Trade Unions (Interested Party) (Petition E045 of 2024) [2025] KEELRC 773 (KLR)
The bottom line
#Kenya's Employment Court dismissed a bid to reopen a ruling, confirming that claiming a judge ignored evidence is a ground for appeal, not review.
What this practically means
#Executive summary
#Key legal issues
#Whether non-consideration of evidence constitutes an error apparent on the face of the record justifying review
It does not; such a claim requires an elaborate analysis of all the evidence and cannot be self-evident on the face of the record.
The court held that a claim that a court failed to consider particular evidence requires evaluation of the evidence adduced by the party in its entirety in order to isolate the pieces not considered. Such an exercise involves a long drawn process of reasoning on which two opinions are conceivable, and therefore cannot qualify as an error apparent on the face of the record or sufficient reason for review. An erroneous view of evidence may be a ground of appeal but not of review.
Whether the court had perused the documents alleged to have been disregarded (the letters dated 2nd October, 2024)
The court found it could not trace any letter by the Petitioners dated 2nd October, 2024 addressed to the 2nd respondent; only unauthenticated SMS/WhatsApp messages existed, which the court had seen but ignored for lack of authentication.
The court recorded that it perused the 19 documents filed on 8th October, 2024 in preparing the earlier ruling but could not trace the alleged response letters of 2nd October, 2024. The only letter of even date from the Petitioners was one addressed to the Director, DCI. The record contained unauthenticated SMS or WhatsApp messages which the court saw but ignored for lack of authentication, an official letter impliedly demanding a formal response.
Whether the review application was served and supported by an Affidavit of Service
There was no evidence of service; no Affidavit of Service was filed despite directions, so the court could not satisfy itself that service was effected as required.
Despite directions issued on 11th December, 2024, the applicant filed no further documents, including an Affidavit of Service. Counsel holding brief could not confirm when service was effected. Since service is foundational to litigation and the respondents did not respond or attend, the absence of an Affidavit of Service meant the court could not verify service, though it nonetheless proceeded to determine the application on merits.
Whether the filing of a Notice of Appeal by previous counsel affects the review application
A Notice of Appeal is not an appeal; the court proceeded on the basis that mere notification of intention to appeal does not amount to an appeal for purposes of review.
The court noted that on 10th December, 2024 previous counsel for the Petitioners filed a Notice of Appeal hours after the review application, a fact the applicant had not adverted to. Relying on the Yani Haryanto principle and Odunga J's decision in HAVLB, the court treated the Notice of Appeal as a mere formal notification of an intended appeal, not an appeal for purposes of review.
Legal principles established
#- Non-consideration of a piece of evidence by a court is not, of itself, a mistake or error apparent on the face of the record for purposes of review, because establishing it requires an elaborate evaluation of the entirety of the evidence.
- For review purposes, an error apparent on the face of the record must be self-evident and require no elaborate argumentation.
- A Notice of Appeal is not an appeal; the filing of the record of appeal constitutes the appeal.
- Service of documents is evidenced by an Affidavit of Service, without which the court cannot verify that service was effected, particularly where the respondent does not attend court or respond.
Court orders
#- 1.The 2nd Petitioner's Notice of Motion dated 9th December, 2024 seeking review of the ruling delivered on 5th December, 2024 is dismissed with no orders as to costs
- Jurisdiction invoked
- Section 16 of the Employment and Labour Relations Court Act; Section 33 of the Employment and Labour Relations Court Act (invoked by applicant); Rule 74 of the Employment and Labour Relations Court (Procedure) Rules, 2024
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Tonui & another v Kenya Union of Post Primary Education & another; Registrar of Trade Unions (Interested Party) (Petition E045 of 2024) [2025] KEELRC 773 (KLR)", Case Analysis (2025). Petition No E045 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/773/eng@2025-03-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.