Board of Management Kagumo Teachers College & another v Kihara

3. 2. The court erred in nding that the documents dated 16th February 2024 constituted new and important evidence, despite the said materials being available to the Respondent during the hearing and already on record. 3. The Honourable Magistrate misdirected herself in holding that there existed an error apparent on the face of the record, contrary to established jurisprudence on what constitutes such an error. 4. The court exceeded its jurisdiction under Order 45 by re-opening and re-evaluating the entire merits of the case, thereby eectively sitting on appeal against its own judgment delivered on 3rd December 2024. 5. The court erred in relying on documents whose authenticity, relevance, and evidentiary value had not been tested through the trial process and which were not properly produced as evidence. 6. The award of Kshs. 672,101.10 had no evidentiary basis, was speculative, and unsupported by any admissible computation or proof presented at the hearing. 7. The decision undermined the principle of nality of litigation, as the Claimant’s suit had been heard on merit and dismissed. 8. The court misapplied government Human Resource policy instruments, including schemes of service, circulars, and common establishment documents, none of which create enforceable contractual rights in the manner found by the court. 9. The ruling was against the weight of evidence, the pleadings, and applicable law, and resulted in a miscarriage of justice. Consequently, the Appellant prays that this Appeal be allowed in its entirety; that the Ruling and all consequential orders issued on 7th October 2025 be set aside; that the judgment delivered on 3rd December 2024 dismissing the Claimant's suit be reinstated; and that the Appellant be awarded the costs of this Appeal as well as the proceedings before the subordinate court. The Submissions 4. The Appeal was canvassed by way of written submissions. On the part of the Appellant, it has been submitted that the Respondent's application for review did not satisfy any of the grounds prescribed under Order 45 Rule 1 of the Civil Procedure Rules. In support of this position, the Appellant has placed reliance on the case of Muyodi v Industrial & Commercial Development Corporation & Another (2006) 1 EA 243 and Francis Njoroge v Stephen Miana Kamore [2018] eKLR. 5. Citing the decision in Nyutu Agrovet Ltd v Airtel Networks Kenya Ltd [2015] eKLR, the Appellant has further argued that the absence of documents from the court le does not constitute an error apparent on the face of the record capable of warranting a review. 6. The Appellant further posits that, in undertaking a fresh assessment of the Respondent's job group progression, salary adjustments and the applicability of various human resource circulars, the learned Magistrate exceeded the scope of the review jurisdiction conferred under Order 45 of the Civil Procedure Rules. 7. The Appellant has further submitted that the award of Kshs. 672,101.10 was founded on an undated handwritten note that had neither been formally produced as an exhibit nor subjected to cross- https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2604/eng@2026-07-31 2

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examination. It was argued that the document's mathematical basis was never independently veried or tested during the hearing, and therefore could not properly form the basis of the award. 8. On the other hand, the Respondent submitted that the documents in question had been duly produced before the trial court and that the error arose from the court's failure to consider them. The Respondent argued that this omission constituted an error apparent on the face of the record, thereby justifying the exercise of the court's review jurisdiction. In support of this position, reliance was placed on the case of Paul Mwaniki v National Fund Board of Management [2020] eKLR and Muyodi v Industrial & Commercial Development Corporation & Another (supra). Analysis and Determination 9. This being a rst appeal, this Court is enjoined to re-evaluate and re-analyse the evidence that was placed before the trial court and to draw its own independent conclusions, while bearing in mind that it neither saw nor heard the witnesses testify. In undertaking that duty, the Court is guided by the wellestablished principles set out in Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123 thus: “ …..this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular, this court is not bound necessarily to follow the trial judge’s ndings of fact if it appears either that he has clearly failed on some point to take into account of particular circumstances or probabilities materially to estimate the evidence.” 10. Having considered the Record of Appeal in its entirety, the respective submissions of the parties and the applicable law, the Court is satised that the grounds of appeal converge into a single issue for determination, namely, whether the trial court erred in allowing the Respondent's Notice of Motion, reviewing its judgment delivered on 3rd December 2024, and consequently entering judgment in favour of the Respondent in the sum of Kshs. 672,101.10. 11. It is discernible from the record that in its judgment delivered on 3rd December 2024, the Trial Court dismissed the Respondent's claim on the ground that he had failed to prove his case on a balance of probabilities. It is apparent that following the dismissal of his claim, the Respondent moved the Trial Court by way of the Notice of Motion dated 13th February 2025, seeking a review and/or the setting aside of the judgment. 12. The Notice of Motion was premised on the alleged discovery of new and important evidence that was not within his knowledge at the time of the judgment. The Respondent further averred that there was an error apparent on the face of the record, in that the court had failed to note the Further List of Documents dated 16th February 2024, which, according to him, were not in the court le when the judgment was made. 13. In its Ruling, the Trial Court allowed the Respondent's Notice of Motion, holding that sucient cause had been established to warrant a review. Consequently, the court considered the material presented in support of the application, revisited its earlier ndings, and entered judgment in favour of the Respondent for Kshs. 672,101.10, thereby reversing its earlier decision dismissing the claim. 14. This Court's jurisdiction to review its judgments and rulings is conferred by Rule 74(1) of the Employment and Labour Relations Court (Procedure) Rules, 2024, which prescribes the following circumstances under which the power of review may be exercised: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2604/eng@2026-07-31 3

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a. discovery of new and important matter or evidence not within the knowledge of the applicant despite due diligence at the time of the original ruling; b. existence of a mistake or error apparent on the face of the record; c. where the judgment or ruling requires clarication; or d. any other sucient reason. 15. A plain reading of Rule 74(1) of the Employment and Labour Relations Court (Procedure) Rules, 2024 aforementioned, demonstrates that the grounds upon which a judgment or ruling may be reviewed are narrowly circumscribed. Consequently, both the jurisdiction of the Court and the scope of its review powers are strictly limited. 16. The limited nature of the review jurisdiction was underscored by the Court of Appeal in National Bank of Kenya Ltd v Ndungu Njau [1997] eKLR, where it held: “ A review may be granted whenever the court considers that it is necessary to correct an apparent error or omission on the part of the court. The error or omission must be selfevident and should not require an elaborate argument to be established. It will not be a sucient ground for review that another Judge could have taken a dierent view of the matter. Nor can it be a ground for review that the court proceeded on an incorrect exposition of the law and reached an erroneous conclusion of law. Misconstruing a statute or other provision of law cannot be a ground for review.” 17. In the present case, the Trial Court observed that the Respondent's counsel had indicated that the documents relied upon in the application for review had already been led and were annexed to the Notice of Motion. On that basis, the Trial Court found that the documents could not constitute new evidence which, with due diligence, could not have been produced at the time the judgment was made. 18. The Trial Court further found that the Respondent had failed to demonstrate the existence of any error apparent on the face of the record. 19. From the impugned Ruling, it is evident that the Trial Court allowed the Respondent's Notice of Motion on the ground that he had established sucient cause to warrant a review. The question that therefore arises is: what constitutes "sucient cause" for purposes of the review jurisdiction? 20. In the case of Zablon Mokua v Solomon M. Choti & 3 Others [2016] eKLR, the Court observed that it is practically impossible to exhaustively dene or itemise what amounts to "sucient reason" for purposes of a review under the court's residual or inherent jurisdiction. The Court held that, since an application for review is neither an appeal nor a substitute for one, and should not be used as an appeal in disguise to revisit the merits of a decision, the expression "sucient reason" must be construed within the connes of the statutory grounds for review set out in the Civil Procedure Rules. 21. Similarly, in the case of Republic v Advocates Disciplinary Tribunal Ex parte Apollo Mboya [2019] eKLR, the Court cited with approval the decision in Ajit Kumar Rath vs State of Orisa & Others, 9 Supreme Court Cases 596 at Page 608, where the Supreme Court of India determined that the expression “any other sucient reason” ..... means a reason suciently analogous to those specied in the rule. 22. The Court adopted this proposition and culled out the following principles inter alia: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2604/eng@2026-07-31 4

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i. A court can review its decision on either of the grounds enumerated in Order 45 Rule 1 and not otherwise. ii. The expression "any other sucient reason" appearing in Order 45 Rule 1 has to be interpreted in light of other specied grounds… 23. I concur with the position adopted in the foregoing authorities that "sucient reason" must be construed as a reason suciently analogous to the grounds expressly provided under the applicable rule and should not be interpreted in isolation from the statutory grounds for review. Accordingly, whether sucient reason has been established must be assessed in the context of the grounds set out under Rule 74(1)(a), (b) and (c) of the Employment and Labour Relations Court (Procedure) Rules, 2024. 24. Guided by the foregoing precedents, this Court nds that, having determined that the documents relied upon by the Respondent in support of the review application did not constitute new evidence which, despite the exercise of due diligence, could not have been produced at the time the judgment was delivered, and having further found that no error apparent on the face of the record had been highlighted, the Trial Court lacked a proper basis for invoking its review jurisdiction on the ground of "sucient reason." 25. Upon revisiting the record, it is evident that although the Trial Court observed that the Respondent had not attached any page from the List and Bundle of Documents dated 16th February 2025 (sic), it nevertheless proceeded to rely on an undated handwritten note titled “Breakdown of the Claim” in computing the sum payable to the Respondent. 26. Indeed, it was on the strength of that handwritten note that the Trial Court reviewed its earlier decision dismissing the Claim and awarded the Respondent the sum of Kshs. 672,101.10. 27. However, it is notable that the Trial Court did not explain whether the undated handwritten note formed part of the documents annexed to the application for review or whether it was already on the court record but had inadvertently been overlooked when the judgment was delivered on 3rd December 2024. Needless to state, the Trial Court did not identify the source of the undated handwritten note upon which it relied in reviewing its judgment. 28. In the absence of such an explanation by the Trial Court, the undated handwritten note could not properly constitute "sucient reason" within the meaning of Rule 74(1) of the Employment and Labour Relations Court (Procedure) Rules, 2024, as that ground ought to have been analogous with the other grounds for review set out in Rule 74(1)(a), (b) and (c). 29. In the premises, the Court nds that the Respondent failed to satisfy the threshold for the grant of an order of review under Rule 74(1) of the Employment and Labour Relations Court (Procedure) Rules, 2024. 30. The learned Trial Magistrate therefore erred in reviewing the judgment and consequently entering judgment in favour of the Respondent for Kshs. 672,101.10 together with costs and interest at court rates. 31. In the nal analysis, this Appeal succeeds. Consequently, the Ruling of the Trial Court delivered on 7th October 2025 is hereby set aside. There will be no order as to costs. DATED, SIGNED AND DELIVERED AT NYERI THIS 31ST DAY OF JULY 2026. ……………………………… STELLA RUTTO https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2604/eng@2026-07-31 5

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JUDGE In the presence of: For the Appellant Mr. Muthuri For the Respondent Ms. Muthui Court Assistant Ndati Order In view of the declaration of measures restricting Court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules, which requires that all judgments and rulings be pronounced in open Court. In permitting this course, this Court had been guided by Article 159(2)(d) of the Constitution which requires the Court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 1B of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) which impose on this Court the duty of the Court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and aordable resolution of civil disputes. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2604/eng@2026-07-31 6

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