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ELRCDismissedNot stated in the judgment (ruling on the Respondent's Notice of Application dated 13th May 2024)

Kenya Union of Commercial, Food and Allied Workers v Marumi Farmers Cooperative Society Limited (Employment and Labour Relations Cause E011 of 2023) [2024] KEELRC 2755 (KLR)

Employment and Labour Relations Court
8 November 2024
1,559 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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The Employment Court in Nyeri confirmed that disagreeing with a costs order is grounds for appeal, not review.

What this practically means

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Executive summary

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This ruling of the Employment and Labour Relations Court at Nyeri (Onesmus N Makau, Judge) disposed of an application dated 13th May 2024 brought under section 3A of the Civil Procedure Act seeking review and setting aside of the order of 5th April 2024 condemning the applicant to pay the costs of the suit, and substitution with an order that each party bear its own costs. The applicant, supported by an affidavit of its Chairman Peter Kamau Mwangi, argued that because the court had found the termination of the employee lawful, awarding costs to the claimant was punitive and constituted an error apparent on the face of the record. The claimant, through a replying affidavit of its National Organizing Secretary Mike Oranga, countered that costs follow the event, that it had obtained judgment of Kshs.339,500 in terminal dues, and that no proper review application under section 16 of the ELRC Act, Order 45 of the Civil Procedure Rules or Rule 33 of the ELRC Rules, nor any appeal, had been filed. Applying the repealed Rule 33 of the ELRC Procedure Rules 2016 and the authorities on error apparent on the face of the record (National Bank of Kenya v Ndungu Njau; Nyamogo and Nyamogo v Kogo), the court held that the applicant was merely questioning the merits of the costs order, a ground for appeal rather than review. The court affirmed that it had judiciously exercised its discretion in awarding costs to the successful party under section 27 of the Civil Procedure Act. The application was dismissed with costs to the claimant. The ruling was delivered via Teams video conferencing with the parties' consent, waiving Rule 28(3) of the ELRC Procedure Rules.

Questions the Court framed

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

  1. 1.Whether the award of costs to the claimant in the judgment of 5th April 2024 amounted to an error apparent on the face of the record upon which the orders sought can be granted

Key legal issues

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01

Whether the award of costs to the claimant, despite the dismissal of the claim for unlawful termination, was an error apparent on the face of the record justifying review

Holding

No - the costs order was a judicious exercise of discretion under section 27 of the Civil Procedure Act; dissatisfaction with its merits is a matter for appeal, not review

Reasoning

The court had dismissed the unlawful termination claim but awarded terminal dues of Kshs.339,500, making the claimant the successful party on that claim. Under section 27 of the Civil Procedure Act, costs follow the event unless the court orders otherwise, and the discretion was judiciously exercised. The precedents establish that an error apparent on the face of the record must be self-evident; disagreement with the merits of a costs award is not such an error but a ground of appeal to a higher court.

p. 4

Legal principles established

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  • An error apparent on the face of the record must be self-evident and not require elaborate argument; questioning the merits of an order is a ground for appeal, not review
  • Costs follow the event unless the court for good reason orders otherwise; costs may properly be awarded to a party who succeeds on part of the claim

Court orders

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  1. 1.The application dated 13th May 2024 is dismissed with costs to the claimant

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Section 3A of the Civil Procedure Act (inherent power), on an application for review under the repealed Rule 33 of the ELRC Procedure Rules 2016

Relief refused

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Review and setting aside of the order dated 5.4.2024 condemning the respondent to pay the costs of the suit, and substitution with an order that each party bear its own costs

The applicant was questioning the merits of the costs order, which is a ground for appeal and not review; the court had judiciously exercised its discretion in awarding costs to the successful party

p. 4

Costs of the application

The application was dismissed with costs to the claimant

p. 4

Costs

Application dismissed with costs to the claimant

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 applicant is otherwise questioning the merits of the said order, which as demonstrated by the aforesaid precedents, is a good ground for an appeal and not review.
p. 3Review vs appeal - merits of a costs order
I judiciously exercised my discretion when I awarded costs of the suit to the claimant as the successful party to the suit.
p. 3Costs follow the event - section 27 Civil Procedure Act
If the applicant was dissatisfied with the merits of that award, the best forum to impugn it lies in a Court higher than me.
p. 4Proper forum for challenging a costs award
Consequently, the application dated 13th May is bereft of merits and hereby dismissed with costs to the claimant.
p. 4Final orders - dismissal of review application

Issues in the judgment

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minor

The party roles appear internally inconsistent: the applicant seeking review is referred to as 'Respondent' in the application orders, while the party opposing is described as 'claimant'; the underlying suit parties are not clearly identified

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, "Kenya Union of Commercial, Food and Allied Workers v Marumi Farmers Cooperative Society Limited (Employment and Labour Relations Cause E011 of 2023) [2024] KEELRC 2755 (KLR)", Case Analysis (2024). Not stated in the judgment (ruling on the Respondent's Notice of Application dated 13th May 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2755/eng@2024-11-08

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