Patriotic Group of Companies Ltd v Sewe & 15 others (Appeal E020 of 2024) [2025] KEELRC 883 (KLR)
The bottom line
#Kenya's Employment Court dismissed a review application because the applicant argued its appeal merits instead of proving a legal ground for review.
What this practically means
#Executive summary
#Key legal issues
#Whether the Notice of Motion dated 28th November, 2024 met the threshold for review of the ruling of 27th November, 2024
The application was dismissed because none of the grounds for review in Rule 74 of the ELRC (Procedure) Rules, 2024 or Order 45 Rule 1 of the Civil Procedure Rules was demonstrated; the supporting affidavit addressed the merits of the appeal rather than grounds for review
The court set out the review grounds under Section 80 CPA, Order 45 Rule 1 and Rule 74 of the ELRC Rules (new and important matter, error apparent on the face of the record, clarification, or sufficient reason). It found the supporting affidavit devoted to the merits of the appeal rather than to review grounds, that no review provision had been cited as the foundation of the application, and that the late offering of security did not justify review.
Whether the application was res judicata the earlier stay application determined on 27th November, 2024
The court was not persuaded the application was res judicata the earlier application, since the earlier application sought stay of execution and restraint of the auctioneer, not review of the ruling itself
The respondent raised res judicata, relying on Section 7 of the Civil Procedure Act and the proposition that interlocutory proceedings are a suit for res judicata purposes. The court declined to delve into the elements of res judicata but distinguished the earlier stay application from the present review application on their subject matter.
Whether an applicant who has not appealed may pursue review
Yes - since no appeal has been preferred, the applicant had the option of review rather than being confined to an appeal to the Court of Appeal
Relying on Ndithya v Total Kenya Ltd (Odunga J) quoting Orero v Seko, the court held review is available to a party with a right of appeal who is not appealing, or to whom there is no right of appeal; appeal and review cannot be exercised simultaneously. As the applicant opted for review and no appeal was on record, review was procedurally open.
Legal principles established
#- The review remedy is available only to a party who is not appealing the decision or to whom there is no right of appeal; one cannot exercise both the rights of appeal and review at the same time
- Provision of security after delivery of a ruling is not a ground for review of that ruling under Section 80 of the Civil Procedure Act, Order 45 Rule 1 or Rule 74 of the ELRC Procedure Rules, 2024
- An application for review made the day after the ruling sought to be reviewed was made within reasonable time
Court orders
#- 1.The applicant's Notice of Motion dated 28th November, 2024 is dismissed
- Jurisdiction invoked
- Sections 1A, 1B and 3A of the Civil Procedure Act; Order 45 Rules (1) and (2), Order 22 Rule 22 and Order 40 Rules (1) and (2) of the Civil Procedure Rules; 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, "Patriotic Group of Companies Ltd v Sewe & 15 others (Appeal E020 of 2024) [2025] KEELRC 883 (KLR)", Case Analysis (2025). Appeal No E020 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/883/eng@2025-03-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.