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ELRCDismissedApplication and Notice of Motion dated 21st October 2016 (in ELRC cause)

James Kipchirchir Sambu v Patriotic Guards Ltd [2016] KEELRC 18 (KLR)

Employment and Labour Relations Court
19 December 2016
777 words in judgment
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The bottom line

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The Employment Court dismissed Periotic Guards' attempt to change appeal conditions because it raised the wrong arguments through the wrong legal door.

What this practically means

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Executive summary

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The respondent, Periotic Guards Limited, applied by Notice of Motion dated 21st October 2016 for review and/or variation of the court's orders and ruling of 31st October 2016, which had allowed an application dated 20th January 2016 on condition that the entire decretal amount be deposited in a joint interest-earning account of both parties' advocates pending the hearing of an appeal. The respondent offered alternative securities, including logbooks and valued landed securities, relying on Order 42 rule 6(2) of the Civil Procedure Rules and the Salama Mahmoud Saad decision. The claimant opposed through Grounds of Opposition, contending that no grounds for review had been established and that the orders sought to be reviewed had not been extracted. The court held that the issue of stay had already been addressed in its ruling of 20th January 2016, and that Rule 33 of the ELRC (Procedure) Rules requires an error apparent on the face of the record which the respondent had not identified. Any complaint about the mode of security should have been raised in the original application. Applying the principle in Nancy Wanjeri that an error must be evident without elaborate argument, the court found no good grounds for review, termed the application an abuse of process, and dismissed it with costs on 19th December 2016.

Questions the Court framed

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

  1. 1.Whether grounds for review or variation of the court's orders and ruling of 31st October 2016 (and orders of 20th January 2016 and 13th October 2016) under Rule 33 of the Court Rules were made out
  2. 2.Whether the respondent's offer of alternative securities (logbooks and landed securities) in place of a cash deposit of the decretal amount should be accepted

Key legal issues

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01

Whether the review application met the threshold under Rule 33 of the ELRC (Procedure) Rules

Holding

It did not; no error apparent on the face of the record or mistake on the orders made was cited

Reasoning

The court had already dealt with stay of execution and set out the conditions, including a deposit of the decretal sum. Rule 33 requires an error apparent on the face of the record, and the cited authorities confirm that such error must be evident without elaborate argument. The respondent's grievances about the mode of security were matters for the original application, not review.

p. 2
02

Whether the application was an abuse of court process

Holding

Yes; it was a device to stall orders already issued by the court

Reasoning

The court had rendered itself in earlier rulings and orders. Filing a review without invoking Rule 33 properly, and without good grounds, sought to have the court go back on its own orders without due course, effectively sitting on appeal over its own decisions, which the court held to be an abuse of process overtaken by events.

p. 2

Legal principles established

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  • Review is available only where there is an error apparent on the face of the record, evident without elaborate argument
  • Inviting a court to revisit its own orders without good grounds amounts to asking it to sit on appeal over its own decision and an abuse of process

Court orders

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  1. 1.The application dated 21st October 2016 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
Employment and Labour Relations Court (Procedure) Rules, Rule 33

Relief refused

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Review and/or variation of the court orders and ruling of 31st October 2016 and the condition to deposit the decretal amount in a joint interest-earning account

No error apparent on the face of the record was demonstrated under Rule 33; the matters raised should have been addressed in the earlier application

p. 2

Substitution of the cash deposit with alternative securities (logbooks and landed property)

The issues as to the mode of security should have been raised in the application leading to the orders of 20th January 2016

p. 2

Costs

The application dated 21st October, 2016 is dismissed with costs to the claimant.

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.

An error or omission must be by itself be evident and should not require an elaborate argument.
p. 2threshold for review under Rule 33
I therefore find no good grounds that merit a review or variation of the orders of the court.
p. 2finding on the review application
The application dated 21st October, 2016 lack merit, this is an abuse of court process and is hereby dismissed with costs.
p. 2final orders

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 Kipchirchir Sambu v Patriotic Guards Ltd [2016] KEELRC 18 (KLR)", Case Analysis (2016). Application and Notice of Motion dated 21st October 2016 (in ELRC cause). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/18/eng@2016-12-19

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