Kenya Petroleum Oil Workers Union v Green Wells Energies Ltd (Cause E059 of 2023) [2024] KEELRC 1012 (KLR)
The bottom line
#A Kenyan court ruled that unhappy parties must appeal a decision, not ask the same judge to review it, and dismissed the union's application.
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 application to the National Labour Board by the Respondent to revoke the recognition agreement constitutes new evidence warranting review
- 2.Whether the alleged failure by the Court to address the real issue in dispute amounts to an error apparent on the face of the record
- 3.Whether the Motion meets the threshold for the exercise of the Court's review jurisdiction
Key legal issues
#Scope of the review jurisdiction - distinction between review and appeal
Where a court has misapprehended the facts or law or failed to consider an issue, the dissatisfied party's remedy is appeal, not review
The Court held that the Motion sought to alter not only the order declining relief but the Court's reasoning itself. Relying on National Bank of Kenya Ltd v Ndungu Njau, a decision is not reviewable because it rests on an incorrect procedure, a misapprehension of law or a wrongful exercise of discretion. Such errors must be corrected on appeal unless the error is apparent on the face of the record and requires no elaborate argument to expose.
Whether the Respondent's application to the National Labour Board constituted new evidence for review
It did not; the fact is irrelevant to the present proceedings and cannot found review
The Union argued there was discovery of new evidence because the Respondent had applied to the National Labour Board to revoke the recognition agreement. The Court held this fact was not relevant to the proceedings before it and could not be a matter of new evidence warranting the exercise of review jurisdiction.
Legal principles established
#- A court's decision cannot be reviewed merely because the judge misapprehended the law, procedure or exercised discretion wrongly; the remedy is appeal unless the error is apparent on the face of the record requiring no elaborate argument
Court orders
#- 1.The Motion filed in Court on 16 January 2024 is dismissed
- 2.No order on costs since the Respondent did not participate in the application
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Review jurisdiction of the Employment and Labour Relations Court over its own judgment
Relief refused
#Review and/or variation or setting aside or clarification of the judgment given on 6 December 2023
The Motion does not meet the threshold for review; dissatisfaction with the Court's reasoning is a matter for appeal, not review
Order for a technical report from the Central Planning and Monitoring Unit of the Ministry of Labour
The application to the National Labour Board is not relevant to the proceedings and cannot be new evidence warranting review
Costs of the application borne by the Respondent
No order on costs made because the Respondent did not participate in the application
Costs
No order on costs since the Respondent did not participate in 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.
The Motion filed in Court on 16 January 2024 is found without merit and is dismissed with no order on costs since the Respondent did not participate in the application
Where a Court has misapprehended the facts or the law or failed to consider an issue, the window open to the party who is dissatisfied is to prefer an Appeal to a higher Court, and not to invoke the review powers of the Court
The Motion herein does not meet the threshold for the exercise of the Court’s review jurisdiction.
The fact that the Respondent has moved the National Labour Board is a fact which is not relevant to the present proceedings. It cannot be a matter of new evidence warranting the Court to exercise its review jurisdiction.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Petroleum Oil Workers Union v Green Wells Energies Ltd (Cause E059 of 2023) [2024] KEELRC 1012 (KLR)", Case Analysis (2024). Motion filed 16 January 2024 (judgment of 6 December 2023 in the main suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1012/eng@2024-04-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.