Monicah Wanjiru Mwangi v Trans Mattresses Limited [2020] KEELRC 1372 (KLR)

REPUBLIC OF KENYA IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT KISUMU CAUSE NO. 257 OF 2015 (Before Hon. Justice Mathews N. Nduma) MONICAH WANJIRU MWANGI..........CLAIMANT VERSUS TRANS MATTRESSES LIMITED.....RESPONDENT RULING 1. The application dated 30 th August 2019 and filed on even date prays for an order inter alia for review of the judgment and orders of the court delivered on 9th July 2019 and that the firm of Muli and Company Advocates be granted leave to come on record on behalf of Respondent in place of Omweno and Company Advocates. 2. The application is based on new matters that were neither raised or canvassed during the hearing of the suit to wit: i. The court lacks jurisdiction to entertain the claim since the cause of action arose in the year 2010 and the same was filed in Employment and Labour Relations Court in the year 2015 beyond limitation period. ii. The benefits awarded from a CBA dated 2017 did not apply to the claimant. 3. The application is opposed by a replying affidavit sworn to by the claimant on 9 th September 2019 and filed on 18 th September 2019 in which she states that the suit was initially filed before Kitale Chief Magistrates Court on 18 th March 2010 and the cause of action arose on 11th January 2010 when the claimant was dismissed from employment. 4. That the suit was transferred by consent of the parties vide Kitale High Court Miscellaneous Civil Application NO. 38 of 2014. Upon transfer, pleadings were amended and the matter proceeded to trial before Employment and Labour Relations Court Kisumu, being Cause No. 257 of 2015. 5. That issue of jurisdiction was never raised. The matter proceeded to trial and judgment was delivered on 9 th July 2019. 6. The Applicant’s counsel executed a consent letter to correct errors in the judgment of the court on 27 th July 2019 and the consent was filed on 29th July 2019. The consent documents are attached to the application. 7. That the issues now raised by the applicant could only be dealt with if at all on appeal. That the application be dismissed for lack of merit. 8. Rule 33(1) of the Employment and Labour Relations Court (Procedure) Rules 2016, provides: “a person aggrieved by a decree or an order from which an appeal is allowed but from which no appeal is preferred or from which no appeal is allowed, may within reasonable time, apply for a review of the judgment or ruling: a. If there is discovery of new important matter or evidence which, after the exercise of due diligence, was not within the knowledge of that person or could not be produced by that person at the time when the decree was passed or the order made. b. On account of some mistake or error apparent on the face of the record

page 1 of 2