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Court of AppealDismissedReview application within the appeal from ELRC Cause No. 414 of 2013· [2025] KECA 848 (KLR)

Lochab Brothers Limited v Transport Workers Union

Court of Appeal
9 May 2025
1,264 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~5 min to read original · ~4 min brief

The bottom line

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The Court of Appeal refused to reopen a decided case, confirming that objections to a late appeal must be raised through proper applications, not arguments.

What this practically means

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Executive summary

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This ruling of the Court of Appeal at Nakuru (Warsame, Mativo & Gachoka JJA) determines an application by the Transporters Workers Union for review and setting aside of the Court's judgment of 26th July 2024, which had allowed the Union's appeal and set aside in entirety the ELRC judgment of Ongaya J dated 28th March 2014 in ELRC Cause No. 414 of 2013, with costs. The applicant argued there was an error apparent on the face of the record: its appeal had been filed out of time, the notice of appeal having been filed on 29th May 2014, some 32 days beyond the 14-day window expiring on 14th April 2014, and that the court had failed to make findings on this when raised in submissions. The court held that Rule 75 relied upon was inapplicable, being concerned with review in the context of the Criminal Procedure Code, and that Rule 37's slip rule applies only to clerical or arithmetical mistakes or accidental slips. The complaint raised was a substantive jurisdictional question that could not be dressed as a slip. Applying Rule 86, the court noted the thirty-day bar on strike-out applications and that an objection to the competence of an appeal cannot be raised through submissions, and that under Rule 107(b) leave is required at the hearing - neither of which the applicant sought. Invoking Menginya Salim Murgani v Kenya Revenue Authority and Benjoh Amalgamated Ltd v Kenya Commercial Bank Ltd on the Court's residual review jurisdiction after the 2010 Constitution, the court reaffirmed the principle of finality. The application was found unmerited and dismissed with costs to the respondent.

Key legal issues

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01

Scope of the slip rule under Rule 37 of the Court of Appeal Rules

Holding

Rule 37 permits correction only of clerical or arithmetical mistakes or errors arising from accidental slip or omission, so as to give effect to the Court's intention. No such error existed here.

Reasoning

The court examined its prior judgment and found no clerical, typographical or accidental omission undermining its intent. The applicant's real complaint was that the appeal was filed out of time - a substantive jurisdictional question. The court held such a question cannot be repackaged as a slip for purposes of review, and Rule 75 relied upon by the applicant was inapplicable as it deals with review in the context of the Criminal Procedure Code.

p. 2
02

Consequence of failing to object to competence of appeal in time (Rules 86 and 107(b))

Holding

A party affected by an appeal must apply under Rule 86 to strike out a notice or appeal filed out of time within the prescribed period; failing that, leave under Rule 107(b) is required to raise the objection, neither of which occurred.

Reasoning

Rule 86 bars a strike-out application brought more than thirty days after service of the notice or record of appeal. The applicant only raised the out-of-time filing in submissions dated 23rd April 2024, by which time it was time-barred and no formal application had been made. Rule 107(b) forbids raising the objection at the hearing without leave, and no leave was sought. The procedural route was therefore lost.

p. 3
03

Finality of judgments and the Court's residual jurisdiction to review

Holding

Even after the 2010 Constitution, the Court of Appeal's residual jurisdiction to correct errors of law causing real injustice does not displace the principle of finality; review cannot be used to reopen determined matters.

Reasoning

Relying on Menginya Salim Murgani v Kenya Revenue Authority, which reaffirmed Benjoh Amalgamated Ltd v Kenya Commercial Bank Ltd, the court noted the residual post-2010 jurisdiction to correct errors occasioning real injustice. However, that jurisdiction calls for a balance of finality and justice, and cannot be invoked through the back door where the front door of timely objection was open and unused.

p. 2

Legal principles established

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  • Review under the slip rule is confined to clerical or arithmetical mistakes or accidental slips; a substantive question of jurisdiction cannot be raised through review.
  • An objection to the competence of an appeal on the ground that the notice of appeal was filed out of time cannot be raised through submissions; it must be raised by formal application under Rule 86 or with leave under Rule 107(b).
  • A respondent who fails to invoke Rule 86 within the prescribed time and does not seek leave under Rule 107(b) cannot reopen the competence of a determined appeal through a review application; finality prevails.

Court orders

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  1. 1.Application for review of the judgment of 26th July 2024 dismissed
  2. 2.Costs of the application awarded to the respondent
On appeal from
Employment and Labour Relations Court
ELRC Cause No. 414 of 2013 (Ongaya J), judgment dated 28th March 2014; appeal decided by this Court (Warsame, Ochieng & Mativo JJA) on 26th July 2024
Jurisdiction invoked
Rule 37 of the Court of Appeal Rules (slip rule / correction of orders) and Article 159(2)(d) of the Constitution of Kenya 2010

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, "Lochab Brothers Limited v Transport Workers Union", Case Analysis (2025). Review application within the appeal from ELRC Cause No. 414 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/848/eng@2025-05-09

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