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ELRCDismissedNot stated in the judgment (ELRC review application)· [2024] KEELRC 1802 (KLR)

Osiri v Onda Mechanical (EA) Limited & 2 others (Appeal E184 of 2022) [2024] KEELRC 1802 (KLR)

Employment and Labour Relations Court
5 July 2024
AJAbuodha Nelson Jorum
1,655 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court refused to review a judgment just because submissions were overlooked, ruling submissions are not evidence and don't change outcomes.

What this practically means

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Executive summary

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The 1st and 2nd Respondents (advocates Crispin N. Ngugi and Doreen Jepsergon Cherutich) applied under Section 16 of the Employment and Labour Relations Court Act and Rule 33 of the ELRC (Procedure) Rules, 2016, invoking Articles 27(1), 50 and 159(2)(d) of the Constitution, for review of the court's judgment dated 24th November 2023 and for consideration of their submissions dated 15th September 2023, together with a stay of execution (since spent). They contended there was an error on the face of the record: the judgment indicated they had not filed submissions when the submissions were lodged on the e-filing portal and a physical copy delivered to the registry, and that the court would have decided differently had it considered their arguments on the competence of the appeal filed three days out of time. The Appellant opposed, explaining the delay in filing the appeal. The court applied National Bank of Kenya Ltd v Ndungu Njau, Muyodi v ICDC and Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi, holding that an error apparent on the face of the record must be obvious and admit of no two opinions, and that failure to consider submissions is not fatal unless a fundamental principle of law was overlooked. The court found the applicants had never earlier raised the competence issue, and that the submissions merely echoed the pleadings and evidence. The application was dismissed with costs.

Key legal issues

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01

Grounds for review under Rule 33 of the ELRC (Procedure) Rules, 2016

Holding

Review lies only for an error apparent on the face of the record that is self-evident and requires no elaborate argument, or for sufficient reason; a possibly different view on the same record is not a ground

Reasoning

The court relied on National Bank of Kenya Ltd v Ndungu Njau and Muyodi v ICDC, which distinguish a mere erroneous decision from an error apparent on the face of the record. An error that can be established only through long reasoning, or on which two opinions are conceivable, cannot ground review. The applicants' complaint - that their submissions were on the e-filing portal and delivered physically yet the judgment indicated none were filed - did not meet this threshold.

p. 3
02

Whether failure to consider submissions warrants review

Holding

No, unless the submissions raise a fundamental principle of law which the court obviously ought to have considered; here the submissions merely echoed the pleadings and evidence

Reasoning

The court held that submissions are parties' parting shot and cannot substitute for pleadings and evidence. The applicants argued their submissions attacked the appeal as filed out of time, a jurisdictional issue. The court found nothing on record showing the applicants had earlier questioned the competence of the appeal, and that even if the submissions had been considered the outcome would not have differed since they repeated what was in the pleadings and evidence.

p. 4

Legal principles established

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  • An error apparent on the face of the record must be obvious on its face and admit of no two opinions
  • Non-consideration of submissions is not fatal to a judgment unless the submissions raised a fundamental principle of law the court obviously ought to have considered
  • Submissions do not constitute evidence and cannot determine a case one way or the other

Court orders

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  1. 1.The Application is dismissed with costs

Authorities

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Legislation

  • Employment and Labour Relations Court ActSection 16
  • Employment and Labour Relations Court (Procedure) Rules, 2016Rule 33(1)(b) and (d)
  • Constitution of Kenya, 2010Articles 27(1), 50, 159(2)(d)

Cases cited (4)

  • National Bank of Kenya Ltd vs Ndungu Njau
  • Muyodi -v- Industrial and Commercial Development Corporation & Another
    (2006) 1 EA 243
  • Nyamogo & Nyamogo -v- Kogo
    (2001) EA 174
  • Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi & another
    [2014] eKLR
On appeal from
Employment and Labour Relations Court (review of its own judgment; underlying matter an appeal)
Jurisdiction invoked
Section 16 of the Employment and Labour Relations Court Act and Rule 33 of the Employment and Labour Relations Court (Procedure) Rules, 2016; Articles 27(1), 50 and 159(2)(d) of the Constitution invoked by the applicants

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, "Osiri v Onda Mechanical (EA) Limited & 2 others (Appeal E184 of 2022) [2024] KEELRC 1802 (KLR)", Case Analysis (2024). Not stated in the judgment (ELRC review application). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1802/eng@2024-07-05

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