Ibwaga & 84 others v Attorney General (Employment and Labour Relations Petition E071 of 2023) [2024] KEELRC 2516 (KLR)
The bottom line
#A Kenyan employment court refused to reopen its earlier dismissal, confirming that a later Supreme Court decision changing the law is not a reason to review an old ruling.
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 Petitioners/Applicants are entitled to a review of the Court's ruling and/or order delivered on 3rd November 2023 dismissing the petition for lack of jurisdiction
Key legal issues
#Whether the ruling of 3rd November 2023 dismissing the petition for want of jurisdiction contained an error apparent on the face of the record entitling the applicants to review under Rule 33 of the ELRC (Procedure) Rules, 2016
The application for review fails because at the time the ruling was made the court's finding that it lacked jurisdiction was correct; the Supreme Court decision confirming ELRC jurisdiction was delivered afterwards, and a subsequent change in the law is not a ground for review
Rule 33(1) permits review for discovery of new matter, error apparent on the face of the record, clarification, or other sufficient reason. The authorities establish that an error apparent must be self-evident without elaborate argument, and that reversal of a point of law by a later superior court decision in another case does not ground review. The applicants' complaint rests entirely on the Supreme Court's decision of 21st February 2024, which post-dated the ruling of 3rd November 2023. Hence no error existed on the face of the record when the ruling was made; the proper remedy was an appeal.
Legal principles established
#- The fact that a decision on a question of law on which a judgment is based has been reversed or modified by a subsequent decision of a superior court in another case is not a ground for review of that judgment
- Review lies only for patent, self-evident error; a mere erroneous decision or a different possible view of the law is not a ground for review - the remedy is appeal
Court orders
#- 1.The Notice of Motion dated 15th March 2024 seeking review of the ruling of 3rd November 2023 is dismissed
- 2.Each party to meet their costs of this application
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Section 16 of the Employment and Labour Relations Court Act, Cap 8E, read with Rule 33(1) of the ELRC (Procedure) Rules, 2016
Relief refused
#Review of the Court's ruling and order of 3rd November 2023 dismissing the petition for want of jurisdiction
No error apparent on the face of the record was demonstrated; the Supreme Court decision relied on was delivered after the ruling and subsequent reversal of a legal position by a superior court is not a ground for review; the remedy was appeal
Costs
Each party to meet their costs of this 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 fact that the decision on a question of law on which the judgment of the court is based has been reversed or modified by the subsequent decision of a superior court in any other case is not a ground for the review of such judgment.
If an error is not self-evident and detection thereof requires long debate and process of reasoning, it cannot be treated as an error apparent on the face of the record
finds the applicant has not proven there is an error in the court's ruling on the face of the record. The only cure for the matters raised was to appeal the ruling dated November 3, 2023.
The application therefore fails and is dismissed.
Each party to meet their costs of this application.
Issues in the judgment
#The judgment does not state the petition or case number for the review application; only the date of the Notice of Motion (15th March 2024) is given
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ibwaga & 84 others v Attorney General (Employment and Labour Relations Petition E071 of 2023) [2024] KEELRC 2516 (KLR)", Case Analysis (2024). Notice of Motion dated 15th March 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2516/eng@2024-10-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.