Rift Valley Railways Workers Union (K) v Kenya Railways Staff Retirement Benefits Scheme & 2 others; Retirement Benefits Authority (Interested Party) [2021] KEELRC 1463 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 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.Whether the matters raised are proper for review or belong on appeal
Key legal issues
#Discovery of new and important matter as a ground for review
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
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'.
Whether findings on locus standi can be revisited on review
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
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.
Choice between review and appeal
Having moved for review, the claimant was bound by that choice; a party must elect between appeal and review
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.
Legal principles established
#- 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
#- 1.The application dated 14th January 2020 is found without merit and is dismissed
- 2.Costs to the respondents; the Interested Party to bear own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Rule 33 of the Employment and Labour Relations Court (Procedure) Rules, 2016
Relief refused
#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
Costs
Costs to the respondents. The Interested Party shall bear own 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.
The court finds no matter for review in the instant application.
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.
A review cannot be claimed or asked for merely for a fresh hearing or arguments or correction of an erroneous view taken earlier
The element of discovery is lost. It does not exist.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.