Hayombe v Kenya Water Institute (Employment and Labour Relations Cause E151 of 2022) [2025] KEELRC 2423 (KLR)
The bottom line
#A Kenyan employer lost its bid to overturn an employment judgment because it sued through the wrong advocate, delayed, and tried to appeal and seek review at the same time.
What this practically means
#Executive summary
#Key legal issues
#Whether counsel could come on record and file the review application without prior leave under Order 9 rule 9
No; without prior leave the counsel was improperly on record and the application could not stand
Order 9 rule 9 requires that after judgment a change of advocate be effected only by court order or consent. The applicant's counsel sought leave to come on record within the same application seeking substantive orders, without prior leave. An application for review cannot be filed by counsel improperly on record, so the review application could not proceed.
Whether a party who has filed a notice of appeal may also apply for review
No; review under Rule 74(1) of the ELRC Rules 2024 is available only where no appeal has been preferred, and pursuing both is an abuse of process
Rule 74(1) confines review to a person aggrieved by a decree from which no appeal is preferred or allowed. The applicant had filed a notice of appeal, so it had to elect one remedy. Concurrent pursuit of appeal and review, as confirmed in University of Eldoret v Sitienei, would be an outright abuse of judicial process.
Whether the grounds for review (new evidence, error, sufficient reason) were met
No; the evidence of a second salary was in the applicant's possession and its failure to adduce it at hearing cannot found review
Review requires discovery of new and important matter which due diligence could not have uncovered. The applicant knew of the alleged double salary during hearing and had multiple opportunities, including leave to file a witness statement, to produce evidence. Failure to call available evidence is not a ground for review and reopening would reward inadequate preparation by its counsel.
Legal principles established
#- After judgment, a change of advocate or intention to act in person cannot be effected without an order of the court, and an application filed by counsel improperly on record cannot be allowed to proceed
- A party who has filed a notice of appeal cannot concurrently seek review of the same judgment; it must choose one path, and doing both is an abuse of court process
- A party's failure to call evidence which was in its possession cannot amount to discovery of new and important matter warranting review
Court orders
#- 1.The application (Notice of Motion dated 10th April 2025) is dismissed
- 2.Costs of the application are awarded to the Claimant/Respondent
- Jurisdiction invoked
- Review jurisdiction under Rule 74(1) of the ELRC Rules 2024 and Order 45 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Hayombe v Kenya Water Institute (Employment and Labour Relations Cause E151 of 2022) [2025] KEELRC 2423 (KLR)", Case Analysis (2025). Not stated in judgment (ELRC cause, main suit registered 8th March 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2423/eng@2025-09-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.