[2020] KEELRC 1586 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT

AT NAIROBI

CAUSE NO. 1658 OF 2014

ANTHONY CHELIMO.......................................................................CLAIMANT

VERSUS

KENYA COMMERCIAL BANK LIMITED................................RESPONDENT

RULING

Introduction

1. The Application before me is the claimant’s Notice of Motion dated 29. 4.2019 and it is brought under section 16 of the Employment and Labour Relations Court (ELRC) Act, Rule 33 (3) of the ELRC (Procedure) Rules, 2016 and all other enabling provisions of the law. It seeks for reviews, variation and/or setting aside of this court’s judgment dated 31st January, 2019 and the consequential decree/order.

2. The motion is premised on the grounds set out on the body of the motion and the supporting affidavit sworn by the claimant sworn on 29. 4.2019. The gist of the application is that the court rendered the impugned judgment on 31. 1.2019 dismissing the suit herein; that there are mistakes and patent errors on the face of the impugned judgment as the judgment is contrary to the evidence tendered; that the court erred by finding that the claimant acted in gross negligence by breaching the Dual Custody Principle while undertaking Vault and ATM functions and thereby provided an opportunity to the Manager SQC to steal Kshs. 4. 5 from the Vault yet he did not have the safe keys on 2nd and 3rd April, 2014; that the court erred in fact by failing to appreciate the admission by Mr Nyabasia in his statement dated 6th April 2014 that he was solely responsible for the theft and no other staff of the respondent was involved; that the application has been made without unreasonable delay; that the judgment is erroneous, unjust and highly prejudicial to the claimant; and finally that the review order will not prejudice the respondent.

3. The application is opposed by the respondent through the replying Affidavit sworn by Wahura Mwangi on 24. 6.2019. The gist of the response is that the application falls short meeting the threshold for granting review order; that the application does not disclose any error apparent on the face of the record but rather challenges the court’s assessment of the evidence on record; that the judgment is correct in making a finding that the termination was grounded on a valid reason and that fair procedure was followed; and finally that granting the application is tantamount to the court sitting on appeal over its own decision. She therefore prayed for the application to be dismissed with costs.

4. The application was disposed of by written submissions which were filed on 3. 10. 2019 and 31. 10. 2019 respectively.

Applicant’s submissions

5. The applicant submitted that the application meets the threshold for granting the review order sought. He urged that there is no appeal against the impugned judgment and the application was brought expeditiously and without delay. He further urged that the he has demonstrated that the impugned judgment is bedeviled with a mistake or error apparent on the record as required under Rule 33(2)(b) of the ERLC (procedure) Rules. Finally he contended that he has shown vide his Supporting Affidavit that the court erred by failing to consider crucial evidence which could have swayed the court to rule otherwise.

6. He relied on Zablon Mokua v Solomon M. choti & 3 others [2016] e KLRin which threshold for granting review was discussed including mistake or error apparent on the face of the record. He contended that the mistake or error in the impugned judgment is self-evident on the face of the record because the judgment is contrary to the evidence and the court failed to consider certain crucial evidence which if taken into account the court could have arrived at a different verdict.

Respondent’s submissions

7. The respondent submitted that the applicant has not met threshold for review of the impugned judgment because he has not demonstrated that there is a mistake or error apparent on face of the record as alleged in his application. She contended that the issues raised by the applicant do not constitute a mistake or error apparent on the face of the record but grounds best suited for an appeal. She further contended that the application is challenging the courts assessment of the evidence and asking the court to re-appraise the evidence. According to her, an erroneous view of the evidence by the court is not a ground for review, nor can erroneous conclusion and determination of contested issues be varied by way of review. She reiterated that allowing the application would amount to the court sitting on appeal over its own decision, which is not permitted.

8. She relied on Pancras T. Swai v Kenya Breweries Limited [2014] e KLRwhere the court of Appeal held that a good ground of an appeal may not amount to a good ground for an application for review. She further relied on Republic v Public Procurement Administrative Board & 2 others [2018] e KLR where the High Court held that review on ground of a mistake or error apparent on the face of the record must not extend to re-appraisal of the entire evidence or how the judge applied or interpreted the law or exercised his discretion otherwise the court would be exercising appellate jurisdiction, which is not permissible.

9. He further relied on Zablon Mokua v Solomon M. Choti & 3 others [2016] e KLRwhere the Court of Appeal held that an error apparent on the face the record is distinct from a mere erroneous decision, and that an error which requires long drawn process of reasoning or on points where there may be two opinions, is not an error apparent on the face of the record.

Issues for determination

10. There is no dispute that I rendered the impugned judgment on 31. 1.2019 whereby after considering the evidence tendered I dismissed the suit entirely. The applicant now seeks for review, variation and/or setting aside of the said judgment on ground that there is a mistake or error apparent on the face of the record. The only issue for determination therefore, is whether the application has met the threshold for granting the review order sought.

Analysis and determination

11. The threshold for granting the review order is set out under Rule 33(1) of the ELRC Procedure Rules which provides that:

“33(1) A person who is aggrieved by a decree or order ... may within reasonable time, apply for a review of the judgment or ruling: -

(a) If there is discovery of new and important matter or evidence...;

(b) on account of some mistake or error apparent on the record;

(c) if the judgment... requires clarification; or

(d) for any other sufficient reason.”

12. In a nutshell, the foregoing rule allows the court to review its order if:

(a) The order has not been appealed against.

(b) The application is made without inordinate delay.

(c) Any of the grounds set out in Rule 33(1) (a) (b) (c) and (d) above is proved.

13. In this case, the application for review was made on 9. 5.2019 and the impugned judgment was passed on 31. 1.2019. The time taken before making the application was therefore 4 months. I agree with the applicant that the delay of 4 months was not unreasonable. I am also satisfied that there is no appeal on record challenging the impugned judgment. I will therefore proceed to consider the application on merits.

Mistake or error apparent on record

14. The application for review is premised on the ground that the impunged judgment is bedevilled by a mistake or error apparent on the face of the record. It is the applicants case that the impugned judgment is contrary to the evidence tendered and the court failed to take into account certain crucial evidence which could have swayed his mind to arrive at a different verdict. He highlighted certain documents which were filed as exhibits which in his view were not considered, and which could have led to a different decision if the court took them into account when writing the judgment.

15. The respondent has however, viewed the application as an appeal disguised as application for review considering the grounds advanced for the review. She contended that the grounds raised in support of the application are best suited for an appeal and that allowing the application would amount to the court exercising appellate jurisdiction over its own decision which is no allowed.

16. I agree with the respondent that the grounds advanced in support of the application for review are best suited for an appeal. The claimant is questioning the court’s assessment of the evidence tendered and in his view concludes that the court made an error of judgment. He further contents that the court failed to consider or take into account certain evidence and as a result arrived at a wrong decision. According to him had the court taken into account the said evidence which was on record, its mind would have been swayed to arrive at a different decision. The foregoing averments may be good grounds of appeal because they come challenging the merits of the decision which requires a long process of reappraising the evidence to see if indeed there is such error of judgment or failure to take into consideration matters which ought to have been taken into account when making the impugned judgment.

17. I seek support from Pancras T. Swai v Kenya Breweries Limited [2014] e KLRwhere the Court Appeal cited its earlier decision in Francis origo & another v Jacob Kumali Mugala C.A Civ Appeal No. 149 of 2001 where it expressed itself as follows: -

“Our parting shot is that an erroneous conclusion of law or evidence is not a ground for a review but may be a good ground for appeal.”

18. I further rely on Zablon Mokua v Solomon M. Choti & 3 others [2016] e KLRwhere the Court of Appeal also cited its earlier decision in Nyamogo & Nyamogo v Kogo [2001] EA 174 where it held that:

“… an error apparent on the face of the record cannot be defined precisely or exhaustively…and it must be left to be determined judicially on facts of each case. There is real distinction between a mere erroneous decision andan error apparent on the face the record. Where an error on a substantial point of law stares one on the face, and there could reasonably be no two opinions, a clear case of error apparent on the face of the record would be made out. An error which has to be established by long drawn process of reasoning or on points where there may conceivably be two opinions, can hardly be said to be an error apparent on the face of the record.” (emphasis added)

19. In view of the finding herein that the application herein challenges the merits of the impugned decision on ground that the court erred in assessment of evidence and failure to take into account crucial evidence, I return that the application does not meet the threshold for review under Rule 33 (1)(b) of the ELRC Procedure Rules. On the contrary, I agree with the respondent that the applicant has filed an appeal disguising it as review.

Conclusion and disposition

20. I have found that the application, though brought without unreasonable delay, the same lacks merits since the applicant has not demonstrated any mistake or error apparent on face of the record in the impugned judgement. Consequently, the application is dismissed with costs.

Dated, Signed and Delivered in Open Court at Nairobithis 21st day of February, 2020.

ONESMUS N. MAKAU

JUDGE