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Case Brief · caselaw.co.ke
ELRCDismissedNot stated in extract

Wilson W. Kabuta v B.O.G Kabare Girls High School [2014] KEELRC 37 (KLR)

Employment and Labour Relations Court
19 December 2014
492 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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Following the court's judgment of 5 June 2014 in an employment suit, the claimant, Wilson W. Kubuta, filed a Notice of Motion on 24 July 2014 under Order 45(1) and (2) of the Civil Procedure Rules seeking review and setting aside of the judgment. He urged that he had new and important evidence - certificates of his credentials and academic qualifications - which was not readily available at the hearing, and that no prejudice would befall the respondent if the orders were granted. He argued the certificates showed he satisfied Civil Service qualifications and deserved Civil Service terms and conditions of service. The respondent opposed through a replying affidavit of Jacinta W. Ndambiri, its Principal, contending that it had already paid the claimant Kshs. 94,570.00 by cheque dated 11 July 2014 in satisfaction of the judgment, which the claimant unconditionally accepted; that the certificates produced were academic rather than professional; and that the application was filed after inordinate and unexplained delay. The court found the claimant failed to show that with due diligence the certificates could not have been availed at the hearing; that the application came after inordinate delay and after satisfaction of the judgment; and that reviewing a satisfied decree without reasonable and lawful cause prejudices the party who satisfied it. It further noted the application sought no consequential orders such as rehearing, rendering it misconceived. The notice of motion was dismissed with costs on 19 December 2014.

Questions the Court framed

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

  1. 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. 2.Whether the application for review was filed after inordinate and unexplained delay, particularly given that the judgment had been satisfied
  3. 3.Whether a review of a judgment already satisfied between the parties can be entertained
  4. 4.Whether the application was misconceived for want of consequential orders such as rehearing

Key legal issues

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01

Entitlement to review on grounds of new and important evidence

Holding

The claimant failed to demonstrate due diligence; the certificates could have been obtained before the hearing

Reasoning

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.

p. 2
02

Effect of satisfaction of the judgment on an application for review

Holding

A belated review application over a judgment already satisfied, without reasonable and lawful cause, must not be entertained

Reasoning

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.

p. 2
03

Want of consequential orders in the review application

Holding

The application was misconceived because it sought no consequential orders such as setting aside proceedings or a rehearing

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.The notice of motion for review and setting aside is dismissed with costs

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Order 45(1) and (2) of the Civil Procedure Rules (application for review)

Relief refused

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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

p. 3

Costs

Dismissed with costs (costs to the 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.

In conclusion, the notice of motion for review and setting aside is dismissed with costs.
p. 3Final orders - dismissal of the review application
such application for review, like in the instant case, is belated and must not be entertained
p. 2Belated review of a satisfied judgment
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
p. 2Due diligence requirement for new evidence on review

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, "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.