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ELRCDismissedApplication and Notice of Motion dated 14th January 2020 (Cause ruling of 31st May 2018 under review)

Rift Valley Railways Workers Union (K) v Kenya Railways Staff Retirement Benefits Scheme & 2 others; Retirement Benefits Authority (Interested Party) [2021] KEELRC 1463 (KLR)

Employment and Labour Relations Court
11 February 2021
2,025 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled that a union cannot use review to re-argue a lost case; its real remedy was an appeal.

What this practically means

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Executive summary

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The claimant trade union, through its Secretary General Munayi Isaac Opondo, filed a Notice of Motion dated 14th January 2020 under Rule 33 of the ELRC (Procedure) Rules, 2016 seeking review of the court's ruling of 31st May 2018, which had upheld the respondents' preliminary objections and found the claimant lacked locus standi to sue on behalf of over 8,000 pensioners in respect of Muthurwa Estate. The claimant alternatively sought quashing of the ruling and a de novo hearing, arguing discovery of new and important matter, the nexus between the union and pensioners, and constitutional rights under Articles 22 and 258 to sue on behalf of others. Both respondents opposed through Grounds of Opposition, contending the application was incompetent, an abuse of process, filed over two years late, and in substance an appeal disguised as review. Only the claimant filed written submissions, relying on a prior decision in Cause No. 2289 of 2015 where standing was found. The court analysed Rule 33(1) and held that the claimant failed to demonstrate discovery of any new and important matter not within its knowledge when the ruling was issued, pleaded no mistake or error apparent on the record, no need for clarification, and no other sufficient reason. The grounds raised went to the merits of the ruling on standing, which are matters for appeal, not review; and having elected review, the claimant lost the right of appeal. The application was dismissed with costs to the respondents, the Interested Party bearing its own costs.

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's application satisfies the grounds for review under Rule 33(1) of the ELRC (Procedure) Rules, 2016 - discovery of new and important matter, error apparent on the face of the record, need for clarification, or other sufficient reason
  2. 2.Whether the matters raised are proper for review or belong on appeal

Key legal issues

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01

Discovery of new and important matter as a ground for review

Holding

The claimant did not identify any new and important matter that came to its knowledge after the ruling of 31st May 2018; the element of discovery was not established

Reasoning

Rule 33(1) requires that the matter be new, important, and discovered after the order was made despite due diligence. The supporting affidavit of the Secretary General asserted discovery generically but failed to state what the matter actually was or when it came to his knowledge. The court held the element of discovery 'does not exist'.

p. 3
02

Whether findings on locus standi can be revisited on review

Holding

The court's findings on the claimant's standing relate to the merits of the ruling and cannot be corrected on review; the proper remedy was an appeal

Reasoning

The grounds in the application and affidavit attacked the reasoning, conclusions and findings of the court on standing. Review is confined to the Rule 33(1) grounds and is not a second bite at the merits. The trial court had already pronounced itself on standing, and decisions of courts of equal jurisdiction cannot ground a review.

p. 3
03

Choice between review and appeal

Holding

Having moved for review, the claimant was bound by that choice; a party must elect between appeal and review

Reasoning

Applying the Court of Appeal decision in Gerald Kithu Muchanje, the court reiterated that a party must choose either to appeal or to apply for review, and exercising the right to review extinguishes the right of appeal against the same order.

p. 3

Legal principles established

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  • For a review, the applicant must demonstrate discovery of new and important matter not within their knowledge when the order was made, or a mistake or error apparent on the record, need for clarification, or other sufficient reason
  • A party must elect between filing an appeal and applying for review; challenging the merits of a ruling is a ground for appeal, not review

Court orders

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  1. 1.The application dated 14th January 2020 is found without merit and is dismissed
  2. 2.Costs to the respondents; the Interested Party to bear own costs

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Rule 33 of the Employment and Labour Relations Court (Procedure) Rules, 2016

Relief refused

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Review of the court's earlier decision of 31st May 2018 so as to conform to the findings sought, or quashing of that decision and a de novo hearing

No discovery of new and important matter, no error apparent on the face of the record, no clarification needed and no other sufficient reason under Rule 33(1); the grounds raised concern the merits of the ruling, which are matters for appeal, not review

p. 3

Costs

Costs to the respondents. The Interested Party shall bear own costs.

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.

The court finds no matter for review in the instant application.
p. 3Absence of Rule 33 grounds
Accordingly, the application dated 14th January, 2020 is hereby found without merit and is hereby dismissed. Costs to the respondents. The Interested Party shall bear own costs.
p. 3Disposition
A review cannot be claimed or asked for merely for a fresh hearing or arguments or correction of an erroneous view taken earlier
p. 3Limits of the power of review
The element of discovery is lost. It does not exist.
p. 3Failure to establish discovery of new matter

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, "Rift Valley Railways Workers Union (K) v Kenya Railways Staff Retirement Benefits Scheme & 2 others; Retirement Benefits Authority (Interested Party) [2021] KEELRC 1463 (KLR)", Case Analysis (2021). Application and Notice of Motion dated 14th January 2020 (Cause ruling of 31st May 2018 under review). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1463/eng@2021-02-11

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