Wilson W. Kabuta v B.O.G Kabare Girls High School [2014] KEELRC 37 (KLR)
The bottom line
#The Employment Court in Nyeri dismissed a review application because the claimant delayed, accepted payment of the judgment, and failed to show the new evidence could not have been obtained earlier.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the claimant had shown that the certificates now produced as new and important evidence could not, with due diligence, have been made available at the hearing
- 2.Whether the application for review was filed after inordinate and unexplained delay, particularly given that the judgment had been satisfied
- 3.Whether a review of a judgment already satisfied between the parties can be entertained
- 4.Whether the application was misconceived for want of consequential orders such as rehearing
Key legal issues
#Entitlement to review on grounds of new and important evidence
The claimant failed to demonstrate due diligence; the certificates could have been obtained before the hearing
The claimant only produced academic, not professional, certificates, and gave no explanation why they were not available at the hearing. The court applied the review standard requiring a party to show that new evidence could not with reasonable diligence have been adduced at trial, and found the ground unmade out.
Effect of satisfaction of the judgment on an application for review
A belated review application over a judgment already satisfied, without reasonable and lawful cause, must not be entertained
The respondent had paid Kshs. 94,570.00 by cheque of 11.07.2014 and the claimant unconditionally accepted that satisfaction. Reviewing a satisfied decree would prejudice the paying party and disturb a matter put to rest; the application was filed after inordinate delay on 24.07.2014.
Want of consequential orders in the review application
The application was misconceived because it sought no consequential orders such as setting aside proceedings or a rehearing
Allowing review and setting aside as framed, without providing for setting aside the hearing proceedings or a fresh hearing, would serve no purpose. This defect furnished an additional ground for dismissal.
Legal principles established
#- Without a reasonable and lawful cause, an application for review of a judgment or decree already satisfied between the parties is prejudicial to the party who satisfied it and must not be entertained where belated
- A party seeking review of newly discovered evidence must show that with due diligence the evidence could not have been obtained at the hearing
- An application for review that does not pray for consequential orders such as rehearing is misconceived
Court orders
#- 1.The notice of motion for review and setting aside is dismissed with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Order 45(1) and (2) of the Civil Procedure Rules (application for review)
Relief refused
#Review and setting aside of the judgment delivered on 5.06.2014
Lack of due diligence, inordinate delay, satisfaction of the judgment, and absence of consequential orders sought
Costs
Dismissed with costs (costs to the respondent)
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In conclusion, the notice of motion for review and setting aside is dismissed with costs.
such application for review, like in the instant case, is belated and must not be entertained
the claimant has failed to show that with due diligence, the certificates now filed and relied upon as new or fresh evidence, could not have been made available at the hearing of the suit
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wilson W. Kabuta v B.O.G Kabare Girls High School [2014] KEELRC 37 (KLR)", Case Analysis (2014). Not stated in extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/37/eng@2014-12-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.