Maingi v Milicons Limited (Civil Appeal E043 of 2022) [2023] KEELRC 3138 (KLR)
The bottom line
#What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether there was a mistake or error apparent on the face of the record in the judgment of 28th March 2023 warranting review
- 2.Whether the judgment required clarification on service pay, interest and statutory deductions
- 3.Whether there was any other sufficient reason for review
Key legal issues
#Whether the grounds raised disclosed a mistake or error apparent on the face of the record or sufficient reason for review
The Court found no error apparent on the face of the record, no clarification needed and no sufficient reason; the issues raised fall outside the review jurisdiction
The Court reviewed rule 33 of the ELRC (Procedure) Rules, 2016 and authorities on 'sufficient reason', holding that such reason must be analogous to discovery of new evidence or error on the face of the record. The applicant's complaints about service pay, interest, deductions, quantum of damages and arithmetic went to the trial court's discretion and could only be challenged on appeal, not through review.
Whether review can be used to challenge discretionary rulings on costs and damages
Discretionary matters such as each party bearing their own costs and quantum of damages can only be challenged on appeal, not by review
The Court held that the order that each party bear their own costs was a discretionary one, wrongly exercised or not, challengeable only on appeal. Similarly, the claim for damages for unfair termination went to the discretion of the court and could only be challenged on appeal if improperly exercised. Invoking review on such matters would amount to the court sitting on appeal on its own decision.
Legal principles established
#- Sufficient reason for review must be analogous or ejusdem generis to discovery of new evidence or error apparent on the face of the record
- A court cannot invoke review to sit on appeal over its own decision; matters of judicial discretion are only challengeable on appeal
Court orders
#- 1.The application for review dated 6th July 2022 is dismissed
- 2.Costs of the application awarded to the Respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Sections 12(3)(v) & (vi) and 16 of the Employment and Labour Relations Court Act, 2011; rules 17(1) and 33(1)(b)(c) & (d) and (2) of the Employment and Labour Relations Court (Procedure) Rules, 2016
Relief refused
#Review of the judgment of 28th March 2023 including awards of service pay, damages for unfair termination, underpayments and interest
No error apparent on the face of the record, no clarification needed and no sufficient reason for review; issues raised were matters for appeal
Costs
The application was dismissed with costs to the 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.
From the perusal of the supporting afidavit however, the Court does not seem to see any mistake or error apparent on the face of record or any clarification needed or suficient reason for review.
suficient reason ought to relate with discovery of new evidence or error on the face of record which in this case the Court is not persuaded there was any.
In essence therefore, the Appellant would seem to be invoking the review jurisdiction of the Court on matters which could only be raised on appeal. That cannot happen as the Court cannot sit on appeal on its own decision.
The application is therefore found without merit and is hereby dismissed with costs.
Issues in the judgment
#Application is described as dated 6th July, 2022 but seeks review of a judgment delivered 28th March, 2023 - an apparent internal date inconsistency
Replying Afidavit sworn 15th May, 2023 in reply to an application said to have been filed 6th July, 2022 - chronology inconsistent
Inconsistent figures: Appellant avers part payment of Kshs 16,800/= while Respondent avers total payment of Kshs 87,900/=, yet the judgment elsewhere refers to Kshs 89,900/=
Judgment paragraph numbering skips from 17 to 19
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Maingi v Milicons Limited (Civil Appeal E043 of 2022) [2023] KEELRC 3138 (KLR)", Case Analysis (2023). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3138/eng@2023-11-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.