Shollei v Keroche Breweries Limited (Cause 35 of 2019) [2025] KEELRC 1584 (KLR)
The bottom line
#A Kenyan employer that had appealed a judgment lost its bid to have the same court review that judgment, and must pay the awarded sum plus costs.
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 Court has jurisdiction to review its own Judgment where an appeal was preferred to the Court of Appeal and dismissed for non-attendance
- 2.Whether error apparent on the face of the record, misapplication of the Employment Act, and newly discovered evidence justify review of the Judgment of 27th September 2022
- 3.Whether the application for review is an abuse of the process of the Court
Key legal issues
#Jurisdiction to review where an appeal was preferred
The Court lacks jurisdiction to review its judgment once an appeal has been preferred against it, regardless of the appeal's fate
Rule 74(1) of the E&LRC [Procedure] Rules 2024 permits review by a person aggrieved by a decree from which no appeal was preferred. The Respondent filed an appeal at the Court of Appeal against the Judgment of 27th September 2022. Even though the appeal was dismissed for non-attendance without a hearing on the merits, the fact of having preferred an appeal bars recourse to review. Returning to the trial court is an abuse of process.
Inapplicability of the Civil Procedure Act and Order 45
Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules invoked by the Respondent are irrelevant to E&LRC proceedings
The Respondent anchored the review application on Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules. The Court held that its review jurisdiction is conferred by Section 16 of the E&LRC Act and regulated by Rule 74 of the E&LRC [Procedure] Rules 2024, rendering the Civil Procedure Act provisions inapplicable.
Claim of newly discovered evidence and abuse of process
The claim of new evidence from Director Tabitha Karanja was untenable given her prior written consent to satisfy the decree
The Respondent claimed newly discovered evidence from its Director Tabitha Karanja. The Court noted that in an earlier application it was clear the Director had met the Claimant and consented in writing to pay the decretal sum in instalments, indicating no errors in the Judgment. The Respondent was in serial disobedience of court orders, obstructing execution, and the review application was another attempt to delay satisfaction of the decree.
Legal principles established
#- A party who has preferred an appeal cannot invoke the review jurisdiction of the trial court, even where the appeal is dismissed for non-attendance without a hearing on the merits
- Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules do not apply to proceedings in the Employment and Labour Relations Court; review there is governed by Section 16 of the E&LRC Act and Rule 74 of the E&LRC [Procedure] Rules 2024
- A court that has delivered final judgment and whose decree is under satisfaction becomes functus officio and cannot revisit its judgment
Court orders
#- 1.The application filed by the Respondent dated 14th May 2025 is declined
- 2.Costs to the Claimant
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 and Rule 74 of the E&LRC [Procedure] Rules 2024
Relief refused
#Review of the Judgment delivered on 27th September 2022
Having preferred an appeal at the Court of Appeal, the Respondent cannot return to the Trial Court and seek review; the Court is functus officio; the application is an abuse of process
Costs
Costs to the Claimant
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 Respondent preferred an appeal, and cannot invoke the review jurisdiction of the Trial Court.
It is immaterial that that the Court of Appeal dismissed the appeal for non-attendance, and that there was no merit hearing and determination of the appeal.
The application for review of Judgment is in abuse of the process of the Court.
The Court, as held in the other application, has reached the limit of its jurisdiction. It is functus oficio. It cannot revisit the Judgment delivered on 27th September 2022.
The application filed by the Respondent dated 14th May 2025 is declined.
Costs to the Claimant.
Issues in the judgment
#The judgment misspells 'functus officio' as 'functus oficio' in the operative passage
The judgment does not state the case title, case number or neutral citation in the extracted text
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Shollei v Keroche Breweries Limited (Cause 35 of 2019) [2025] KEELRC 1584 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1584/eng@2025-05-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.