Moses Kiprotich Rutto & Others v Telkom Kenya Limited (Cause 139 (N) of 2009) (Employment and Labour) [2014] KEIC 9 (KLR)
The bottom line
#What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether there was an error or mistake apparent on the face of the record in that the Court failed to consider the Respondent's final submissions filed on 17th September 2012
- 2.Whether new evidence had come to the possession of the Respondent justifying review
- 3.Whether the Respondent was denied the opportunity to call its witness
Key legal issues
#Error or mistake apparent on the face of the record - non-consideration of final submissions
No error apparent: despite the Respondent's assertion that it filed submissions on 17th September 2012 with a receipt, no copy of the submissions is on the court file, so the position at judgment delivery still holds.
The applicant alleged the court overlooked its final submissions which challenged the computation of the award to Koyi. The court re-perused the file and found no copy of the submissions on record. Counsel for the respondent conceded she had borrowed and copied the Claimants' counsel's copy. The filing receipt could not substitute for submissions actually on the record. The alleged error therefore did not exist on the face of the record.
Disqualification of the Respondent's witness
The Respondent was not prevented from calling another witness; its counsel chose to close its case without calling any witness, so this ground cannot support review.
The court noted that the witness intended by the Respondent was disqualified because he had sat through the testimony of the Claimants' witness, but counsel Mr Okeche was not barred from calling any other witness or adducing other evidence. Counsel elected to close his case. The denial of opportunity alleged was therefore self-inflicted and not a ground for review.
Legal principles established
#- In an application for review founded on error or mistake apparent on the face of the record, the applicant bears the duty to demonstrate that error or mistake.
- Review cannot be used to introduce new evidence that was available or could have been produced during trial.
Court orders
#- 1.The Review Application is dismissed with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Rule 32(b) of the Industrial Court (Procedure) Rules 2010 - review on account of error or mistake apparent on the face of the record
Relief refused
#Review of the judgment of 24th March 2014 as regards the award to Evans Jegegu Koyi
No mistake or error apparent on the face of the record; no new evidence; the Respondent's submissions were not on the court file and it was not barred from calling another witness
Costs
The Review Application is dismissed with costs.
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.
In an Application for Review where the main attack is on error or mistake apparent on the face of the record, the Applicant has a duty to show the error or mistake.
From the foregoing it is clear the Respondent's Review Application is devoid of merit as there is no mistake or error apparent on the face of the Record nor is there cause to review the decision made for any other reason. The Review Application is dismissed with costs.
There is no new evidence that has come to the possession of the Respondent that was hitherto not available or could not be produced by the Respondent during the trial.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Moses Kiprotich Rutto & Others v Telkom Kenya Limited (Cause 139 (N) of 2009) (Employment and Labour) [2014] KEIC 9 (KLR)", Case Analysis (2014). Application for Review dated 30th July 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keic/2014/9/eng@2014-12-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.