Periasamy & another v Shri Gayatri Borewell (K) Limited (Cause E003 of 2022) [2023] KEELRC 3309 (KLR)
The bottom line
#Kenya's Employment Court dismissed a bid to reopen a decided employment case, confirming that consent orders bind parties and dissatisfaction with a judgment belongs in appeal, not 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 consent order of 17.03.2023 to determine the case on pleadings and documents binds the parties
- 2.Whether the applicants could set aside the consent directions and reopen the determined suit through a review application
- 3.Whether any known ground for review existed to warrant review of the judgment of 28th July 2023
Key legal issues
#Effect of the consent order of 17.03.2023
The parties' advocates voluntarily consented on 17.03.2023 to determination of the matter on pleadings and documents; that consent binds the parties and stands absent coercion, fraud or misrepresentation.
The Court found, as submitted for the respondent, that on 17.03.2023 the parties entered a voluntary consent order that the case be determined on the basis of pleadings and documents deemed duly produced and admitted as filed. Nothing suggested coercion, fraud or misrepresentation, and no mutual consent to set it aside was shown; the parties are therefore bound.
Whether review can reopen a determined suit
Review cannot be used to relitigate a determined suit with a valid judgment and decree merely because the outcome is unfavourable.
The Court held that the applicants, unhappy with the judgment, were seeking to fill gaps in their own or their advocates' failures to relitigate the case. Review procedure does not exist to reopen determined suits with valid judgments and decrees to arrive at a different outcome. The case is a lesson that litigants must take pretrial steps and pretrial conferences seriously.
Whether a ground for review existed
No known ground for review was established; disagreement with the Court's reasoning is a matter for appeal, not review.
The Court found no suggested or known ground for review. The applicant merely wanted the Court to change its reasoning and analysis in the judgment, which is a matter for appeal. The application accordingly failed, with each party bearing its own costs in all the circumstances.
Legal principles established
#- A voluntary consent order not shown to be defeated by coercion, fraud or misrepresentation binds the parties and can only be set aside by the parties' own consent
- Review is not a vehicle for reopening determined suits with valid judgments and decrees in order to obtain a different outcome
Court orders
#- 1.The application dated 28.08.2023 is dismissed
- 2.Each party to bear own costs of the application
- 3.The Deputy Registrar to forthwith return the case file to the Machakos Court's Sub-registry
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Sections 3, 16 and 20(1) of the Employment and Labour Relations Court Act and Rules 25, 28, 33 and 38 of the Court's (Procedure) Rules, 2016
Relief refused
#Review and setting aside of the judgment entered on 28th July 2023
No ground for review existed; parties were bound by the voluntary consent order and the remedy lay in appeal
Setting aside the proceedings of 17th March 2023 and reopening the parties' case for oral evidence
The consent order was voluntary, not defeated by coercion, fraud or misrepresentation, and could only be set aside by the parties' own consent
Costs
Each party to bear own costs of the application
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.
That consent has not been shown as defeated on account of coercion, fraud or misrepresentation. It can only be set aside by parties' own consent but which has not been shown to exist at all. The Court finds that the parties are bound accordingly.
The Court considers that it is not the purpose of a review procedure to reopen determined suits with valid judgments and decrees in a calculated move to seek to arrive at a difierent outcome.
That the proper preparation for the hearing or trial is at the core of justice and the subsequent outcomes in litigation.
In conclusion the application is hereby dismissed with orders: 1. each party to bear own costs of the application; and, 2. the Deputy Registrar to forthwith return the case file to the Machakos Court's Sub-registry.
Issues in the judgment
#The claimants' claim number/case number is not stated anywhere in the judgment text
The respondent is referred to only through its Director's affidavit; the corporate name of the respondent does not appear in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Periasamy & another v Shri Gayatri Borewell (K) Limited (Cause E003 of 2022) [2023] KEELRC 3309 (KLR)", Case Analysis (2023). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3309/eng@2023-12-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.