[2018] KEELRC 1074 (KLR)
The court held that it lacked jurisdiction to entertain the application for review because an appeal had already been preferred to the Court of Appeal. Rule 33 of the Employment and Labour Relations Court (Procedure) Rules, 2016, expressly provides that review is only available where no appeal has been preferred....
Source-derived case information.
- Citation
- [2018] KEELRC 1074 (KLR)
- Parties
- Applicant: Police Constable Henry Nyakoe Obuba; Respondent: National Police Service Commission; Respondent: Insp. General National Police Service; Respondent: Deputy Insp. General National Police Service; Respondent: The Hon. Attorney General
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Petition 14 of 2015
- Procedural Posture
- Review Application / Ruling on Application for Review of Judgment
- Outcome
- application dismissed
- Judges
- AN Makau
- Legal Topics
- Review of Judgment, Reinstatement of Employee, Constitutional Rights Violation, Jurisdiction of Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Police Constable Henry Nyakoe Obuba
Applicant
National Police Service Commission
Respondent
Insp. General National Police Service
Respondent
Deputy Insp. General National Police Service
Respondent
The Hon. Attorney General
Respondent
Procedural Posture
Review Application / Ruling on Application for Review of Judgment
Legal Issues
- 1 Whether the Employment and Labour Relations Court has jurisdiction to review its judgment when an appeal has already been preferred to the Court of Appeal.
- 2 Whether the applicant is entitled to a review of the judgment awarding reinstatement and/or compensation.
Ratio Decidendi
The court held that it lacked jurisdiction to entertain the application for review because an appeal had already been preferred to the Court of Appeal. Rule 33 of the Employment and Labour Relations Court (Procedure) Rules, 2016, expressly provides that review is only available where no appeal has been preferred. Since the grounds for review would be ventilated in the appellate court, it would be a waste of judicial time to consider the application further. The application for review was therefore dismissed with costs to the respondent.
Court Disposition
application dismissed
Orders
- The application for review is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT & LABOUR RELATIONS COURT OF KENYA AT NYERI
PETITION NO. 14 OF 2015
IN THE MATTER OF CHAPTER 4 OF THE BILL OF RIGHTS ARTICLES 1, 2, 3(1), 10, 19, 20, 21, 22, 23, 25, 27(1),(2) AND (3), 28, 41(1), 47(1), 48, 49, 50(1),(2)(a) AND (o), 159(2)(d), 258, 162 & 246(1), (2) &(3) OF THE CONSTITUTION OF KENYA 2010
AND
IN THE MATTER OF THE EMPLOYMENT ACT
AND
IN THE MATTER OF THE NATIONAL POLICE SERVICE ACT, 2011
AND
IN THE MATTER OF THE FORCE STANDING ORDERS UNDER THE POLICE ACT CAP 84 LAWS OF KENYA
AND
IN THE MATTER OF DISCIPLINARY/ORDERLY ROOM PROCEEDINGS
AND
IN THE MATTER OF THE REMOVAL FROM THE POLICE SERVICE
(FORMERLY POLICE FORCE)
BETWEEN
POLICE CONSTABLE HENRY NYAKOE OBUBA....................PETITIONER/APPLICANT
VERSUS
NATIONAL POLICE SERVICE COMMISSION.........................................1ST RESPONDENT
INSP. GENERAL NATIONAL POLICE SERVICE.....................................2ND RESPONDENT
DEPUTY INSP. GENERAL NATIONAL POLICE SERVICE....................3RD RESPONDENT
THE HON. ATTORNEY GENERAL..............................................................4TH RESPONDENT
RULING
1. The Petitioner/Applicant filed the application seeking review of the Judgment of the Court given by Ongaya J. in May 2016. The application is supported by the Petitioner’s affidavit sworn on 30th May 2018. In the suit before my brother, the Petitioner sought reinstatement and the Court granted reinstatement to take effect within 10 days of Judgment. The Petitioner also obtained relief in the form of an order awarding the Petitioner Kshs. 3,000,000/= as compensation for constitutional violations of the Petitioner’s rights. In the decree extracted and the order on the file, this award is indicated as an alternative to reinstatement granted in the preceding order. The couching of the prayer in the alternative is what prompted the review now sought. Pointedly, it is common ground that there is an appeal preferred by the Respondent herein to the Court of Appeal. Orders of stay were granted pending the hearing of the Appeal. Given the fact that the review sought relates to a matter before the Court of Appeal and is on grounds that are going to be ventilated in that Court, the Petitioner’s request for a review cannot fly. Under the Employment and Labour Relations Court (Procedure) Rules, 2016 Rule 33 provides as follows:-
33. (1) A person who is aggrieved by a decree or an order from which an appeal is allowed but from which no appeal is preferred or from which no appeal is allowed, may within reasonable time, apply for a review of the judgment or ruling…
2. An appeal has been preferred and this Court has no jurisdiction to entertain any review. It would be a waste of judicial time to consider the motion beyond this point. The Review application is dismissed with costs to the Respondent.
It is so ordered.
Dated and delivered at Nyeri this 21st day of September 2018
Nzioki wa Makau
JUDGE