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Court of AppealDismissedCivil Appeal 374 of 2014

James Mwangi & 21 Others v Attorney General

Court of Appeal
28 April 2022
2,041 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed that if a judgment is wrong on a point of law, you must appeal it — asking for review instead leads nowhere.

What this practically means

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Executive summary

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The appellants, former employees declared redundant in 2009, had obtained an award of Kshs. 6,278,165.00 from the then Industrial Court in Industrial Cause No. 462 N of 2009 after withdrawing an earlier cause. The 1st respondent then filed Nairobi High Court Constitutional Petition No. 105 of 2010, in which the appellants were named only as interested parties. Mumbi, J. upheld the petition on July 11, 2012, holding that Section 73(3) of the Labour Relations Act required union members' claims to be brought through the union, and that the Industrial Court had exceeded its jurisdiction, rendering the award null and void. The appellants applied on May 17, 2013 for review/setting aside of that judgment, claiming they were never served; Ongaya, J. dismissed the application on June 13, 2014, finding they were aware of the petition through their advocates but delayed unexplainably. The Court of Appeal confined itself to that ruling, holding that submissions on non-service, fair hearing, locus standi and Section 73(3) belonged to the earlier judgment and were not before it. On the merits, the Court found the appellants had not met the Order 45 threshold for review, and that a judgment based on a pure point of law on jurisdiction is amenable only to appeal, applying Origo v Mungala. The appeal was dismissed with costs to the 1st respondent.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the appellants' application for review/setting aside of the judgment of Mumbi, J. dated July 11, 2012 was properly dismissed by Ongaya, J.
  2. 2.Whether the appellants met the threshold requirements for review under Order 45 of the Civil Procedure Rules, including whether the application was made without delay
  3. 3.Whether the Court should interfere with the finding that the appellants were aware of the petition proceedings through their advocates

Key legal issues

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01

Scope of the appeal before the Court

Holding

The appeal was confined to the ruling of Ongaya, J. dismissing the review application; issues of non-service, fair hearing, locus standi and Section 73(3) of the Labour Relations Act, which belonged to the judgment of Mumbi, J., were outside the appeal.

Reasoning

The Court noted it was not in dispute that the Notice of Appeal dated June 18, 2014 targeted only the ruling of June 13, 2014. Submissions on the merits of the underlying petition were therefore misplaced and could not be entertained on this appeal.

p. 3
02

Whether the review application satisfied Order 45 of the Civil Procedure Rules

Holding

The appellants failed to meet the threshold requirements for review; the application was filed after unexplained and inexcusable delay and disclosed no ground for review.

Reasoning

Order 45 requires discovery of new and important matter, mistake or error apparent on the face of the record, or other sufficient reasons, and the application must be made without delay. Ongaya, J. found the applicants were aware of the petition through their advocates but delayed unexplainably; the Court found no basis to interfere with that finding.

p. 4
03

Whether a jurisdictional error is reviewable

Holding

A judgment founded on a pure point of law concerning jurisdiction can only be challenged on appeal, not by review.

Reasoning

The judgment of Mumbi, J. held the Industrial Court had exceeded its jurisdiction under Section 73(3) of the Labour Relations Act. Because the impugned judgment rested on a pure point of law on jurisdiction, review was the wrong remedy; the appellants, having chosen review over appeal, reached a dead end.

p. 4

Legal principles established

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  • A judgment based on a pure point of law touching on jurisdiction is amenable to appeal, not review.
  • An erroneous conclusion of law or evidence is a ground for appeal, not review.
  • An appeal lies only against the decision identified in the Notice of Appeal; matters decided in a different, earlier decision cannot be canvassed.

Court orders

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  1. 1.The appellants' appeal is dismissed
  2. 2.Costs of the appeal awarded to the 1st respondent

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
Employment and Labour Relations Court at Nakuru
Industrial Court Petition No. 4 of 2013 (formerly Nairobi HC Petition No. 105 of 2010)
Jurisdiction invoked
First appellate jurisdiction over an appeal from the Employment and Labour Relations Court (Notice of Appeal dated June 18, 2014)

Relief refused

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Appeal against the ruling of Ongaya, J. dismissing the application for review/setting aside of the judgment of Mumbi, J.

The appellants did not meet the threshold requirements for review; the impugned judgment was based on a pure point of law on jurisdiction amenable only to appeal, not review

p. 4

Costs

The appellants' appeal is dismissed with costs to the 1st respondent.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The impugned judgment was therefore based on a pure point of law touching squarely on jurisdiction and the same could only be amenable to an appeal as opposed to review.
p. 4Appeal, not review, is the remedy for a jurisdictional error
From our re-evaluation of the background of this case, and the material before us, the appellants have not met the threshold requirements that would warrant issuance of orders of review.
p. 4Failure to meet Order 45 review threshold
Our parting shot is that an erroneous conclusion of law or evidence is not a ground for review but may be a good ground for appeal. Once the appellants took the option of review rather than appeal they were proceeding in the wrong direction. They have now come to a dead end.
p. 4Review vs appeal - Origo v Mungala approved
Accordingly, the appellants’ appeal is hereby dismissed with costs to the 1st respondent.
p. 4Final orders - dismissal with costs

Issues in the judgment

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minor

Inconsistent dating of the review application

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, "James Mwangi & 21 Others v Attorney General", Case Analysis (2022). Civil Appeal 374 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/597/eng@2022-04-28

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