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ELRCDismissedNotice of Motion dated 5th December, 2024 (arising from Kisumu ELRC JR No. E032 of 2024)· [2025] KEELRC 920 (KLR)

Odera & 118 others v Homa Bay County Government & 2 others (Judicial Review E032 of 2024) [2025] KEELRC 920 (KLR)

Employment and Labour Relations Court
24 March 2025
2,620 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 in Kisumu refused to review an earlier ruling because the applicant could not point to any obvious error in it.

What this practically means

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Executive summary

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The applicant, through a Notice of Motion dated 5th December, 2024 brought under Sections 1A, 3A and 80 of the Civil Procedure Act, Order 45 Rules (1) and (2) of the Civil Procedure Rules and Rule 74 of the ELRC (Procedure) Rules, 2024, sought review of the Ruling delivered on 4th December, 2024 in which the court struck out Kisumu ELRC JR No. E032 of 2024 as res judicata Kisumu ELRC JR No. E044 of 2023, decided on 6th March, 2024 by Radido J. The applicant contended that the court overlooked reconciled calculations and correspondence between the parties attached to the Chamber Summons, amounting to an error apparent on the face of the record. The respondents opposed, arguing the application was frivolous, res judicata, raised no error apparent, and that the court was functus officio. The court framed three issues: timeliness, whether an error apparent on the face of the record existed, and res judicata. It accepted the application was filed promptly, but applying the settled jurisprudence on error apparent - including Muyodi v ICDC, Paul Mwaniki v NHIF and Chandrakhant Jushibhai Patel v R - held that the applicant had not identified any specific erroneous part of the Ruling; the reconciliations should have been placed before Radido J, making the application a second bite at the cherry. The amount claimed remained uncertain, sustaining the res judicata finding. The Notice of Motion was dismissed with no orders as to costs.

Key legal issues

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01

Whether the Ruling of 4th December, 2024 contained an error apparent on the face of the record

Holding

No error apparent was demonstrated; the court had seen the computations and letters but found no agreement, and the amount claimed remained uncertain

Reasoning

The court applied the settled principle that an error apparent on the face of the record must be self-evident, patent and not establishable by long drawn reasoning. The applicant did not identify the specific part of the Ruling that was erroneous. The reconciled calculations should have been placed before Radido J in the earlier suit; seeking to rely on them now amounted to a second bite at the cherry, not a reviewable error.

p. 5
02

Whether the failure to consider evidence relied upon by a party constitutes an error apparent on the face of the record

Holding

A failure to consider evidence is not automatically an error apparent; where the record shows the court considered the material and reached a possible view, review does not lie

Reasoning

Relying on Muyodi v Industrial and Commercial Development Corporation and Paul Mwaniki v NHIF, the court held that an error not self-evident and requiring long debate cannot ground review, and a judgment cannot be corrected merely because it is erroneous in law or because a different view could have been taken. The applicant failed to pinpoint the alleged error in the Ruling.

p. 5
03

Whether the substantive suit and the application are res judicata Kisumu ELRC JR No. E044 of 2023

Holding

The finding of res judicata was maintained because the amounts claimed remained uncertain, the same as in the earlier suit dismissed by Radido J

Reasoning

The earlier Ruling struck out the Chamber Summons as res judicata Kisumu ELRC JR No. E044 of 2023 because in both matters the sum claimed was uncertain. Asked whether the amount was certain in Kisumu ELRC JR No. E032 of 2024, the court answered in the negative, explaining and affirming the res judicata finding.

p. 5

Legal principles established

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  • An error apparent on the face of the record is one that is self-evident and does not require elaborate argument or long drawn reasoning to establish; a possible view taken by the court is not an error for purposes of review
  • The court has statutory jurisdiction to review its judgments, awards, rulings or orders under Section 80 of the Civil Procedure Act and Section 16 of the Employment and Labour Relations Court Act

Court orders

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  1. 1.The applicant's Notice of Motion dated 5th December, 2024 is dismissed
  2. 2.No orders as to costs

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 3A, 80, 1B
  • Civil Procedure RulesOrder 51 Rule 1; Order 45 Rules (1) and (2); Order 21 Rule 1
  • Employment and Labour Relations Court (Procedure) Rules, 2024Rule 74
  • Employment and Labour Relations Court (Procedure) Rules, 2016 (Repealed)Rule 33
  • Employment and Labour Relations Court ActSection 16
  • Constitution of KenyaArticles 159(2)(d) and 48

Cases cited (13)

  • Pancrast Swan Kenya Breweries Ltd
    [2014] eKLR
  • Muyodi v Industrial & Commercial Development Corporation
    [2006] EA 243
  • John Florence Maritime Services Ltd & Another v Cabinet Secretary, Transparent and Infrastructure & 3 Others
    [2021] eKLR
  • Republic v Advocates Disciplinary Tribual Ex Parte Apollo Mboya
    [2019] eKLR
  • Paul Mwaniki v National Health Insurance Fund Board of Management
    [2020] eKLR
  • Uhuru Highway Development Ltd V Central Bank of Kenya & 2 Others
    [1996] eKLR
  • Telkom Kenya Ltd V John Ochanda
    [2014] eKLR
  • Jaber Mohsen Ali and Another v Priscillah Boit & another
    [2014] eKLR
  • David Oginga Ogutu
    [2022] KEHC 16441 (KLR)
  • National Bank of Kenya Ltd v Ndungu Njau
  • Multi-choice (Kenya) Ltd v Wananchi Group (Kenya) Ltd & 2 Others
    [2020] eKLR
  • Chandrakhant Jushibhai Patel v R
    [2004] ILR 218
  • Nyamongo & Nyamongo v Kogo
    [2001] EA 174
Jurisdiction invoked
Section 80 of the Civil Procedure Act, Section 16 of the Employment and Labour Relations Court Act and Rule 74 of the Employment and Labour Relations Court (Procedure) Rules, 2024

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, "Odera & 118 others v Homa Bay County Government & 2 others (Judicial Review E032 of 2024) [2025] KEELRC 920 (KLR)", Case Analysis (2025). Notice of Motion dated 5th December, 2024 (arising from Kisumu ELRC JR No. E032 of 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/920/eng@2025-03-24

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