Boniface Nzau Muia v Shengli Engineering Construction Company & another [2020] KEELRC 10 (KLR)

The applicant's counsel averred discovery of new and important matters but did not specify what those matters were. Rule 33 requires the applicant to demonstrate, with particularity, the new matter or evidence that could not with due diligence have been produced at the time of the decree. A bare averment by counsel, without outlining the material allegedly discovered, falls short of the threshold for review under the ELRC Procedure Rules, 2016.

The applicant contended that paragraphs 13-17 of the judgment did not clearly identify which respondent was liable for the claimant's work injury. The court held that the grounds for review under Rule 33 must be clearly outlined and that an error apparent on the face of the record must be self-evident, not requiring elaborate argument or being a matter on which another judge might have taken a different view.

The respondents had already filed an application dated 8th March, 2019 seeking stay of execution and extension of time to file a Notice of Appeal, which was dismissed on 17th December, 2019. A party cannot exercise the right of appeal and simultaneously apply for review of the same judgment. Seeking review after that dismissal, two years post-judgment, invited the court to revisit a position already addressed and was an abuse of process.