Tanui v Chief Defence Forces & 2 others (Petition 153 of 2018) [2020] KEELRC 26 (KLR)
The bottom line
#A Kenyan employment court dismissed a former soldier's attempt to have his lost case reconsidered, confirming that disagreements with a judge's findings belong in an appeal, not a review.
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 application is incompetent for being brought under the wrong provisions of law
- 2.Whether the Applicant has met the legal threshold for review of the impugned Judgment
Key legal issues
#Whether an application for review grounded on the wrong statutory provision is incompetent
The application is not incompetent merely because it invoked the wrong provision of law; both parties cited authority supporting this position and the court proceeded to determine the application on its merits.
The court adopted Gitau v Muriuki, holding that where a party's invocation of a wrong provision is not in bad faith and causes no prejudice, the application will not be dismissed on that account alone. The applicant's rejoinder invoking substantive justice under Article 159(2)(d) reinforced the point. The court concurred fully with this precedent and moved to the merits.
Whether the applicant established an error apparent on the face of the record and other sufficient reasons for review under Rule 33 of the ELRC (Procedure) Rules, 2016
The applicant did not meet the threshold for review; the complaint that the court failed to consider his alibi evidence was a grievance with the court's findings on evidence, which lies on appeal, not review.
The judge stated that he had carefully considered all the evidence, including the applicant's passport copies, and made a finding that he did not discharge the burden of proving he was away during the fuel loss. Applying the Nyamogo & Nyamogo test, a possible view adopted by the court is not an error apparent on the face of the record; a mere erroneous decision is a ground for appeal, not review. Entertaining the review would breach the functus officio doctrine.
Legal principles established
#- A court will not dismiss an application solely because it is grounded on the wrong provision of law, provided the invocation is not in bad faith and causes no injury or prejudice.
- An appeal lies for an error of judgment while an error apparent on the face of the record is the subject for review; a possible view adopted by the court is not an error apparent on the face of the record.
- A party cannot use a review application to re-open a decided suit and re-examine evidence, as the court would then sit on appeal over its own judgment contrary to the doctrine of functus officio.
Court orders
#- 1.The application for review is dismissed with no order as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Section 16 of the Employment and Labour Relations Court Act and Rule 33 of the Employment and Labour Relations Court (Procedure) Rules, 2016 (review of the Court's own judgment)
Relief refused
#Review of the portion of the judgment of 8th November 2019 declining prayers 78.1(i), (iv), (v) and 78.2(iii) and the findings in paragraph 53 of that judgment
The applicant did not establish any ground for review under Rule 33 of the ELRC Procedure Rules; the alleged error is not an error apparent on the face of the record but a complaint about the court's findings on evidence, which lies on appeal; entertaining it would amount to the court sitting on appeal over its own judgment contrary to the functus officio doctrine.
Costs of the application borne by the Respondents
Application dismissed with no order as to costs.
Costs
No order as to costs
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 view of the finding that the applicant has not established any of the grounds for review set out under Rule 33 of the ELRC Procedure Rules, 2016, the application is dismissed with no order as to costs.
It is now trite law that an appeal lies for an error of judgment while an error apparent on the face of the record is the subject for review.
Where an error on a substantial point of law stares one in the face, and there could reasonably be no two opinions, a clear case of an error apparent on the face of the record would be made out.
as long as a party’s invocation of the wrong provision of law is not in bad faith, meant to mislead or otherwise causes injury or prejudice to the other side, the court will not dismiss an application solely on account of a provision of the law on which the application is grounded.
If in his view the court made a wrong decision of facts and/or the law, the correct jurisdiction to invoke is appeal to a higher court and not review before the trial court.
Issues in the judgment
#The judgment cites the same Court of Appeal authority under two slightly different names and citations (Nyamogo & Nyamogo -vs- Kogo (2001) EA 174 and Nyamogo and Nyamogo Advocates v Kogo [2001] EA 173), which appear to be the same case.
The respondent's submissions describe the applicant's service record as showing he was within Kenya, while the applicant contends he was on a UN mission and on leave; the judgment records both positions without reconciling them, but this reflects the contested evidence rather than an internal contradiction.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Tanui v Chief Defence Forces & 2 others (Petition 153 of 2018) [2020] KEELRC 26 (KLR)", Case Analysis (2020). Notice of Motion dated 15th January 2020 (arising from Petition dated 28th December 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/26/eng@2020-12-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.