Kenya Private Universities Workers Union v Kenya Highland University (Cause 103 of 2016) [2024] KEELRC 1185 (KLR)
The bottom line
#Kenya's employment court dismissed a union's attempt to revisit a lost case, confirming that evidence already before a judge cannot be recycled as 'new' grounds for 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 Applicant has discovered new and important evidence warranting review of the Court's Ruling dated 21st March 2023
- 2.Whether the Court made an error apparent on the face of the record in finding that there was no subsisting Recognition Agreement between the parties
- 3.Whether the application is frivolous, vexatious and an abuse of court process
- 4.What orders as to costs should issue
Key legal issues
#Whether there was discovery of new and important evidence justifying review under rule 33(1)(a) & (d) of the ELRC (Procedure) Rules / Order 45 of the Civil Procedure Rules
The application fails because the alleged 'new' evidence - the Recognition Agreement dated 23rd June 2016 - was on record, annexed to the Applicant's own application of 2nd December 2022, and was expressly considered in the ruling sought to be reviewed
The court traced the Recognition Agreement (annexture KPUWU-1, dated 23/6/2016) to the Applicant's application dated 2nd December 2022 and noted that the ruling of 21st March 2023 quoted its clause 4 and found the agreement terminated by the Respondent's letter of 7th July 2022 giving three months' notice, to which the Applicant never responded. The court therefore found the claim of new discovery untrue.
Whether the Applicant's grievance about the Court's earlier finding amounts to a proper ground for review
No - dissatisfaction with an erroneous conclusion of law or evidence is a matter for appeal, not review
The Respondent, relying on Philip Kipngetich Cheruiyot v County Government of Bomet, argued that review cannot be used as a second bite at the cherry. The court accepted that the ruling under review had already considered the Recognition Agreement and its termination clause, so the application sought a fresh hearing or correction of an erroneous view, which is not a permissible ground for review.
Legal principles established
#- Review lies only for discovery of new and important evidence not within the applicant's knowledge at the time; evidence already on record and considered by the court cannot constitute a new discovery, and an erroneous conclusion of law or evidence is a ground for appeal, not review
Court orders
#- 1.The application for review of the Ruling dated 21st March 2023 is found unmerited and is dismissed
- 2.There will be no order of costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Rule 33(1)(a) & (d) of the Employment and Labour Relations (Procedure) Rules and all other enabling provisions of the law
Relief refused
#Review, variation or setting aside of the Ruling dated 21st March 2023
The Recognition Agreement was always part of the proceedings and was considered by the Court in the impugned ruling; there was no discovery of new and important evidence
Costs of the application against the Respondent
The Court ordered no order of costs despite the dismissal
Costs
No order of costs - each party to bear its own costs (expressed as 'There will be no order of 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.
In the circumstances of this case the recognition agreement was always part of the proceedings and this court made its ruling whilst considering it. The submissions that it is a new discovery is therefore not true.
I therefore find the application for review unmerited and is dismissed accordingly. There will be no order of costs.
It is clear that an erroneous conclusion of law or evidence is not a ground for a Review but may be a good ground for Appeal.
Issues in the judgment
#The judgment inconsistently dates the earlier application that annexed the Recognition Agreement, referring both to '2nd December, 2023' and '2nd December 2022'; the ruling under review shows the correct date is 2nd December 2022
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Private Universities Workers Union v Kenya Highland University (Cause 103 of 2016) [2024] KEELRC 1185 (KLR)", Case Analysis (2024). Notice of Motion dated 14th November 2023 (filed 31st January 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1185/eng@2024-05-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.