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ELRCDismissedNotice of Motion dated 10th April, 2022 (in the suit arising from Notice of Motion dated 21st January, 2022)

Pousand v Brandley Ltd & 5 others (Employment and Labour Relations Cause 2465 of 2017) [2024] KEELRC 1745 (KLR)

Employment and Labour Relations Court
5 July 2024
1,071 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

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A Kenyan employment court dismissed an attempt to overturn a ruling and stay proceedings, warning that unhappy parties must appeal, not relitigate.

What this practically means

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Executive summary

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The Applicants, dissatisfied with this Court's Ruling delivered on 24th March, 2022 in respect of a Notice of Motion dated 21st January, 2022, filed an application dated 10th April, 2022 under Articles 25(c), 27, 48, 50(1) and 159 of the Constitution and Rules 17, 22, 26(2) and 28(1)(g) of the ELRC (Procedure) Rules, 2016, seeking a stay of proceedings and the setting aside of that Ruling and its consequential orders. They argued that the Claimant had made unsubstantiated claims of fraud which were never tested at a trial within a trial, that fraud had not been proved beyond reasonable doubt, and that they were not heard. The Claimant opposed, describing the application as a delay tactic and an appeal disguised as a setting-aside application, noting the Applicants' non-attendance, the absence of a filed appeal, and their year-long inactivity. The application was dispensed with by written submissions. The Court held that the prayer for stay was overtaken by events as there was no proof any appeal had been filed. On setting aside, the Court restated its review powers under Section 16 of the Labour Relations Act, 2011 and Rule 33 of the ELRC (Procedure) Rules, 2016, and applied the Court of Appeal's decision in National Bank of Kenya Ltd v Ndungu Njau, holding that review requires a self-evident error. Finding no such ground, and noting the Applicants' proper remedy was appeal, the Court characterised the application as an abuse of process, advised the Applicants to pursue their appeal, and dismissed the application with costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the court should stay its proceedings pending an intended appeal
  2. 2.Whether the court's Ruling delivered on 24th March, 2022 should be set aside or reviewed

Key legal issues

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01

Whether the court had power to review or set aside its own ruling, and whether the grounds were met

Holding

The court has power to review its own judgments and orders under Section 16 of the Labour Relations Act and Rule 33 of the ELRC (Procedure) Rules, 2016, but the applicants did not demonstrate any of the statutory grounds; their remedy was an appeal, not setting aside.

Reasoning

The court restated Section 16 of the Labour Relations Act, 2011 and Rule 33 of the ELRC (Procedure) Rules, 2016, and the Court of Appeal's guidance in National Bank of Kenya Ltd v Ndungu Njau that review requires a self-evident error on the face of the record. The applicants only expressed dissatisfaction with the ruling, attached a Notice of Appeal with no proof of filing one year later, and made unsubstantiated fraud claims with no trial-within-a-trial basis shown. Dissatisfaction with a ruling is a ground of appeal, not of review or setting aside.

p. 3
02

Whether proceedings should be stayed pending the intended appeal

Holding

The prayer for stay could not stand because there was no proof on the record that any appeal had been filed; the prayer was overtaken by events.

Reasoning

The court noted it had already directed that the application be dispensed with before any other application, and that an indefinite stay could not be granted absent proof of a filed appeal. The applicants, though claiming to have lodged an appeal against the ruling, produced only a Notice of Appeal and no filing record after more than a year. The court also weighed the Claimant's entitlement to realize the fruits of a judgment in an old matter against further delay.

p. 2
03

Whether the application was an abuse of court process

Holding

Yes - seeking setting aside of a ruling when the proper remedy was an appeal amounted to an abuse of process aimed at frustrating execution of the judgment.

Reasoning

The court observed that the matter was old and the Claimant needed to realize the fruits of his judgment. The applicants' pursuit of setting aside, rather than appeal, demonstrated a mission to frustrate those efforts. The court characterised this as an abuse of court processes and advised the applicants to pursue any appeal to the Court of Appeal instead.

p. 3

Legal principles established

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  • Review may only be granted to correct an apparent error or omission that is self-evident and requires no elaborate argument; a mere difference of view or erroneous legal conclusion is not a ground for review
  • There must be an end to litigation; a party dissatisfied with a ruling should pursue an appeal rather than seek setting aside of the ruling, and abusive applications to frustrate execution amount to abuse of court process

Court orders

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  1. 1.The Application dated 10th April, 2022 is found without merit and is dismissed with costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Articles 25(c), 27, 48, 50(1) and 159 of the Constitution of Kenya; Section 16 of the Labour Relations Act, 2011; Rules 17, 22, 26(2), 28(1)(g) and 33 of the Employment and Labour Relations Court (Procedure) Rules, 2016

Relief refused

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Stay of proceedings pending the intended appeal and the outcome of this application

There was no proof that an appeal had been filed, so the court could not stay proceedings indefinitely; the prayer was overtaken by events

p. 2

Setting aside/review of the Ruling delivered on 24th March, 2022

The applicants illustrated none of the grounds for review; the Notice of Appeal attached was unaccompanied by proof of filing, and dissatisfaction with a ruling is a ground for appeal, not setting aside

p. 3

Costs

The Application is dismissed with costs (costs awarded to the Claimant/Respondent)

Quotable passages

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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 Application is therefore found without merit and is hereby dismissed with costs.
p. 4Final orders - dismissal of the application
In the circumstances I advise the Applicants to follow up their appeal if any, to the Court of Appeal if they were aggrieved by this Court’s ruling of 24th March, 2022.
p. 4Direction on the proper remedy
A review may be granted whenever the court considers that it is necessary to correct an apparent error or omission on the part of the court. The error or omission must be self-evident and should not require an elaborate argument to be established.
p. 3Test for review (National Bank of Kenya Ltd v Ndungu Njau)
Their actions therefore amounted to an abuse of the Court processes by seeking the setting aside of the court’s ruling when the prayers would well be dispensed with through an appeal.
p. 3Abuse of court process
The fact that there was no proof from the record that an appeal had been filed meant the Court could not stay proceedings indefinitely. The prayer was therefore overtaken by events.
p. 2Stay of proceedings

Issues in the judgment

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minor

The judgment numbers its paragraphs 11, 12, 13 and then jumps to 15, omitting paragraph 14

minor

The parties are referred to only as 'the Applicants' and 'the Claimant'; the 2nd Applicant and the Claimant's full name do not appear in the judgment text

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Pousand v Brandley Ltd & 5 others (Employment and Labour Relations Cause 2465 of 2017) [2024] KEELRC 1745 (KLR)", Case Analysis (2024). Notice of Motion dated 10th April, 2022 (in the suit arising from Notice of Motion dated 21st January, 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1745/eng@2024-07-05

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.