Abuya v Principal Secretary, Ministry of Health (Cause E565 of 2020) [2024] KEELRC 1300 (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 is sufficient reason / an error apparent on the face of the record to warrant review of the judgment of 7th December 2023 under rule 33 of the ELRC (Procedure) Rules, 2016
- 2.Whether the court's consideration of limitation under section 90 of the Employment Act, an issue said not to be specifically pleaded, constituted an error on the face of the record
Key legal issues
#Grounds for review under rule 33 of the ELRC (Procedure) Rules, 2016
The applicant raised no known ground for review; disagreement with the court's analysis is a matter for appeal
The court held that the applicant had not established any of the recognised grounds of review such as discovery of new matter, mistake or error apparent on the face of the record, or sufficient reason. Asking the court to redo its analysis in the applicant's favour is appellate in nature. The respondent's submissions on that point were upheld and the application failed.
Limitation under section 90 of the Employment Act
The suit was time barred because the claimant resigned on 13.06.2016 and the three-year limitation period had lapsed when the suit was filed in 2020
The court reaffirmed its earlier finding on limitation, reasoning from the claimant's own demonstrated resignation date. The claimant's contentions that the employment relationship subsisted pending disciplinary clearance and that no certificate of service was issued did not stop time from running under section 90.
Legal principles established
#- Where a judgment has become final, a party seeking to revisit the court's analysis and findings must pursue an appeal, not a review
- A claim filed beyond the three-year limitation period in section 90 of the Employment Act is time barred, and limitation runs from the date employment ceased by resignation
Court orders
#- 1.The application for review dated 31st January 2024 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 3, 3A, 63(e) and 80 of the Civil Procedure Act Cap 21; Order 45 rules 1 & 2 of the Civil Procedure Rules, 2010; Rule 33 of the Employment and Labour Relations Court (Procedure) Rules, 2016
Relief refused
#Review and setting aside of the judgment of 7th December 2023 and grant of the claim
No known ground of review was established; the applicant sought a change of analysis and findings, which are matters for appeal not review
Costs
The application for review is 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.
The claimant has not raised any known ground for review as envisaged in rule 33 of the Employment and Labour Relations Court (Procedure) Rules of 2016 and the submissions for the respondent are upheld, in that respect.
All the claimant has done is to ask the Court to change its analysis and findings to his favour. Such are matters not for review but appeal. The application will fail.
The Court found that the claimant per his own demonstrated case he resigned on 13.06.2016 and therefore the suit was time barred as three years of limitation under section 90 of the Employment Act had lapsed when the suit was filed in 2020.
In conclusion, the application for review is hereby dismissed with costs.
Issues in the judgment
#Case number and the subject judgment of 7th December 2023 are referenced but the file number of the suit is not shown in the extract
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Abuya v Principal Secretary, Ministry of Health (Cause E565 of 2020) [2024] KEELRC 1300 (KLR)", Case Analysis (2024). Not stated in extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1300/eng@2024-05-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.