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ELRCDismissedNot stated in the excerpt (Notice of Motion dated 8th January 2025)

Ochieng v Kenya Accreditation Service (Employment and Labour Relations Petition E118 of 2024) [2025] KEELRC 1502 (KLR)

Employment and Labour Relations Court
19 May 2025
2,315 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court dismissed a review application, confirming that complaints about a ruling's fairness must go to appeal, not review.

What this practically means

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Executive summary

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The Respondent/Applicant filed a Notice of Motion dated 8th January 2025 seeking review, variation and/or setting aside of the Court's ruling and orders of 3rd December 2024, supported by an affidavit of its CEO, Dr. Walter Ongeti. It contended that the impugned ruling effectively determined the main petition by granting conservatory orders resting on the existence of a prima facie case without considering irreparable harm and balance of convenience, thereby condemning the Applicant unheard in breach of Articles 50 and 159 of the Constitution. The Petitioner/Respondent opposed, arguing the application was defective because the Notice of Motion referenced an affidavit of Mr. David Ouma Ochieng which was not annexed, offending Rule 74(3) of the ELRC (Procedure) Rules, 2024, that no error apparent on the face of the record was demonstrated, and that the application was an appeal disguised as review, the court being functus officio and unable to sit in appeal over its own judgment. Both parties filed submissions on whether the application should be struck out, whether grounds for review were established, and whether the orders sought should issue. The court, per Hellen Wasilwa J, held that the Applicant's complaint that the ruling finally determined the petition without a fair hearing is a matter for appeal, not review. The application for review was dismissed with costs in the petition, on 19th May 2025.

Questions the Court framed

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

  1. 1.Whether the Applicant's application lacks standing on the ground that it is supported by the affidavit of Dr. Walter Ongeti rather than Mr. David Ouma Ochieng as indicated in the application
  2. 2.Whether the Applicant has established sufficient grounds to warrant a review of the Court's ruling of 3rd December 2024
  3. 3.Whether the Court should grant the orders sought in the application

Key legal issues

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01

Whether the defect in the supporting affidavit (mismatch between deponent named in the Notice of Motion and the affidavit actually annexed) rendered the application a nullity

Holding

The court did not strike out the application on this ground, treating the objection as one of form rather than substance; the application was determined on its merits and dismissed on the law of review

Reasoning

The Respondent argued that Rule 74(3) ELRC Rules was offended because the Notice of Motion referenced an affidavit of David Ouma Ochieng while the annexed affidavit was that of Dr. Walter Ongeti. The Applicant submitted the error was clerical and caused no demonstrable prejudice, and that procedural objections must be anchored on prejudice. The court heard full submissions on both the striking-out and review issues, ultimately dismissing the application on the substantive ground that no ground for review existed.

p. 3
02

Whether the ruling of 3rd December 2024 contained an error apparent on the face of the record warranting review under Rule 74 ELRC Rules and Order 45 Rule 1 Civil Procedure Rules

Holding

No ground for review was established; the Applicant's grievance was with the correctness of the decision, which is a ground for appeal, not review

Reasoning

Rule 74(1) permits review on discovery of new matter, error apparent on the face of the record, need for clarification, or other sufficient reason. The Applicant's complaint was that the ruling determined the petition without hearing it, breaching Article 50. The court held that a claim that judicial authority was unjustly exercised and that the hearing was unfair is a matter for the appellate court, not for review, since the court cannot sit in appeal over its own ruling.

p. 5

Legal principles established

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  • A complaint that a ruling finally determined a petition without affording a fair hearing is a matter for appeal, not for review by the same court
  • A court cannot sit on appeal over its own judgment through an application for review

Court orders

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  1. 1.The application for review of the ruling and order of 3rd December 2024 was dismissed
  2. 2.Costs were awarded in the petition

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Rule 74 of the Employment and Labour Relations Court (Procedure) Rules, 2024 read with Order 45 Rule 1 of the Civil Procedure Rules and Section 80 of the Civil Procedure Act; Article 50 and Article 159 of the Constitution invoked by the Applicant

Relief refused

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Review, variation and/or setting aside of the Court's ruling and order of 3rd December 2024

The issue raised by the Applicant falls outside the purview of review and is a matter for appeal

p. 5

Costs of the application

Costs were awarded to the Petitioner in the petition instead

p. 5

Costs

Costs in the petition

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 issue of a just decision of judicial authority as averred by the Applicant cannot be a matter for review but for appeal.
p. 5Review vs appeal - fair hearing complaint
The question being raised by the Applicant in my view falls outside the purview of a review and needs a determination by the appellate court.
p. 5Limits of review jurisdiction
The application for review cannot therefore stand and is dismissed accordingly. Costs in the petition.
p. 5Final orders - dismissal and costs

Issues in the judgment

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minor

The judgment identifies parties inconsistently: the Applicant is described as 'Respondent/Applicant' while the opposing party is 'Petitioner/Respondent', suggesting the parties' designations are inverted relative to the main suit

minor

The Petitioner/Respondent's submission misstates the reference to the ELRC Procedure Rules as 'Rule 74 [sic]'

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, "Ochieng v Kenya Accreditation Service (Employment and Labour Relations Petition E118 of 2024) [2025] KEELRC 1502 (KLR)", Case Analysis (2025). Not stated in the excerpt (Notice of Motion dated 8th January 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1502/eng@2025-05-19

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