Hayombe v Kenya Water Institute (Employment and Labour Relations Cause E151 of 2022) [2025] KEELRC 2423 (KLR)
The bottom line
#A Kenyan employer lost its bid to overturn an employment judgment because it sued through the wrong advocate, delayed, and tried to appeal and seek review at the same time.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether counsel can be allowed to file an application seeking leave to come on record and in the same application seek other substantive orders after closure of a case and delivery of judgment without leave of court
- 2.Whether a party who has filed an application for appeal (notice of appeal) can also seek review orders when the appeal is pending
- 3.Whether the applicant's application meets the requisite prerequisites for grant of orders of review
Key legal issues
#Whether counsel could come on record and file the review application without prior leave under Order 9 rule 9
No; without prior leave the counsel was improperly on record and the application could not stand
Order 9 rule 9 requires that after judgment a change of advocate be effected only by court order or consent. The applicant's counsel sought leave to come on record within the same application seeking substantive orders, without prior leave. An application for review cannot be filed by counsel improperly on record, so the review application could not proceed.
Whether a party who has filed a notice of appeal may also apply for review
No; review under Rule 74(1) of the ELRC Rules 2024 is available only where no appeal has been preferred, and pursuing both is an abuse of process
Rule 74(1) confines review to a person aggrieved by a decree from which no appeal is preferred or allowed. The applicant had filed a notice of appeal, so it had to elect one remedy. Concurrent pursuit of appeal and review, as confirmed in University of Eldoret v Sitienei, would be an outright abuse of judicial process.
Whether the grounds for review (new evidence, error, sufficient reason) were met
No; the evidence of a second salary was in the applicant's possession and its failure to adduce it at hearing cannot found review
Review requires discovery of new and important matter which due diligence could not have uncovered. The applicant knew of the alleged double salary during hearing and had multiple opportunities, including leave to file a witness statement, to produce evidence. Failure to call available evidence is not a ground for review and reopening would reward inadequate preparation by its counsel.
Legal principles established
#- After judgment, a change of advocate or intention to act in person cannot be effected without an order of the court, and an application filed by counsel improperly on record cannot be allowed to proceed
- A party who has filed a notice of appeal cannot concurrently seek review of the same judgment; it must choose one path, and doing both is an abuse of court process
- A party's failure to call evidence which was in its possession cannot amount to discovery of new and important matter warranting review
Court orders
#- 1.The application (Notice of Motion dated 10th April 2025) is dismissed
- 2.Costs of the application are awarded to the Claimant/Respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Review jurisdiction under Rule 74(1) of the ELRC Rules 2024 and Order 45 of the Civil Procedure Rules, 2010
Relief refused
#Leave for Isinta & Company Advocates to come on record in place of the Office of the Attorney General
Court held no leave had been sought before filing the review application, so counsel was improperly on record and the application could not proceed
Stay of execution of the judgment entered on 20th February 2025
Application dismissed; also the applicant should not pursue both appeal and review, which is an abuse of process
Setting aside/review of the judgment of 20th February 2025
No new evidence that could not have been obtained with due diligence; failure to call evidence is not absence of evidence; and a notice of appeal had been filed, barring review
Leave to adduce evidence of a second salary and to recall the Claimant for cross-examination
Rejected as part of the review application; the evidence was in the applicant's possession and due diligence would have led to its production
Costs
The application is dismissed with costs to the Claimant/Respondent.
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.
It is my finding that the application cannot therefore stand in the circumstances and is dismissed accordingly with costs
The application for review cannot be filed by a counsel improperly on record.
My view is that the applicant should choose one path and not both and in so doing this is an abuse of the court process
Their failure to call evidence cannot be equated to absence of the said evidence at the time they were to produce it.
Issues in the judgment
#Case title/number of the suit is not stated in the judgment; the motion is dated 10th April 2025 but the main cause number is not given
The first prayer in the motion is recorded only as 'spent', so the complete list of orders sought cannot be verified
Issue 3 in the framing of issues reads 'prerequisites for grand of orders of review', an apparent typographical error for 'grant'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Hayombe v Kenya Water Institute (Employment and Labour Relations Cause E151 of 2022) [2025] KEELRC 2423 (KLR)", Case Analysis (2025). Not stated in judgment (ELRC cause, main suit registered 8th March 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2423/eng@2025-09-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.