Edna Semiti v Intex Construction Ltd (Cause 1349 of 2016) (Employment and Labour) [2021] KEELRC 1451 (KLR)
The bottom line
#A Kenyan employment court dismissed an attempt to review stay orders, confirming that fear of losing money is an appeal issue, not a review ground.
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 Respondent/Applicant is entitled to the prayer for review of the orders issued on 11th November 2020 granting conditional stay of the execution of the judgment delivered on 28th January 2020
Key legal issues
#Whether apprehension of substantial loss due to a claimant's lack of disclosed income constitutes a ground for review under Rule 33(1)
It does not; such averments without evidence are not discovery of new matter, mistake or error apparent on the face of the record, need for clarification, or any other sufficient reason, and belong to an appeal instead
The court held that review is confined to the four grounds in Rule 33(1) of the ELRC (Procedure) Rules 2016. The applicant's claim that the claimant had no disclosed source of income and might not refund the decretal sum if the appeal succeeded was unsupported by any evidence and was by no means discovery of new matter. A party aggrieved by a judgment should appeal, not seek review, as reaffirmed in Francis Origo v Jacob Kumali Mungala.
Legal principles established
#- An erroneous conclusion of law or evidence is a ground for appeal, not for review; review proceedings must strictly fall within the grounds in Rule 33(1) of the ELRC (Procedure) Rules 2016, and any attempt outside them is an abuse of the liberty to review
Court orders
#- 1.The application dated 11th January 2021 is dismissed with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Sections 12 and 13 of the Employment and Labour Relations Court Act and Rule 33(1) of the Employment and Labour Relations Court (Procedure) Rules 2016
Relief refused
#Review and/or setting aside of the orders of 11th November 2020 granting conditional stay
The reason advanced did not fall within any ground for review under Rule 33(1) of the ELRC (Procedure) Rules 2016; the averments were without evidence and amounted at most to grounds of appeal, not review
Extension of time to comply with the orders of 11th November 2020
Not granted; the applicant had already complied by depositing the entire decretal amount as ordered on 14th January 2021
Stay of execution of the judgment delivered on 28th January 2020 pending intended appeal
The application for review having failed, no stay was granted
Costs
This application is dismissed with costs to the Claimant/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.
Accordingly this application is dismissed with costs.
Accordingly, I find that the reason advanced by the Applicant does not fall within the scope for review as contemplated under Rule 33(1) of the Employment and Labour Relations Court (Procedure) Rules 2016.
Our parting shot is that an erroneous conclusion of law or evidence is not a ground for a review but may be a good ground for appeal.
Issues in the judgment
#The judgment does not state the case number or full party names, and refers to the applicant inconsistently (the applicant is described as 'the Respondent' in its own application naming)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Edna Semiti v Intex Construction Ltd (Cause 1349 of 2016) (Employment and Labour) [2021] KEELRC 1451 (KLR)", Case Analysis (2021). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1451/eng@2021-01-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.