[2024] KEELRC 2516 (KLR)

Ibwaga & 84 others v Attorney General (Employment and Labour Relations Petition E071 of 2023) [2024] KEELRC 2516 (KLR) (11 October 2024) (Ruling)

Neutral citation: [2024] KEELRC 2516 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Nairobi

Employment and Labour Relations Petition E071 of 2023

AN Mwaure, J

October 11, 2024

Between

Eunice Ibwaga & 84 others & 84 others

Petitioner

and

Attorney General

Respondent

Ruling

1. The Petitioner/Applicant filed a Notice of Motion dated 15th March 2024 seeking the following orders that: -1. the Honourable Court be pleased to review its ruling and/or order delivered on 3rd November 2023 by Honourable Lady Justice Anna Ngibuini Mwaure dismissing the Petition on the ground that this Honourable Court lacked jurisdiction by dint of Articles 165(3)(d)(1) of the Constitution and section 12 of the Employment and Labour Relations Court Act.2. the costs of this application be provided for.

Petitioners’ Case 2. The Petitioners aver that the ruling and/or order dismissing the petition on the ground that this Honourable Court does not have jurisdiction was an error of law and error apparent on the face of the record as this court has jurisdiction to determine constitutional validity of a statute involving matters of employment and labour relations as in this case.

3. The Petitioners/Applicants aver that the Supreme Court in Petition No. E004 of 2023 as Consolidated with Petition No. E002 of 2023 held that the Employment and Labour Relations Court has jurisdiction to determine the constitutional validity of a statute.

Respondent’s Case 4. In opposition to the application, the Respondent filed a replying affidavit dated 19th April 2024.

5. The Respondent avers that it is common law position that a judicial decision may be relied upon in matters or cases not yet fully determined but the retrospective effect of a judicial decision is excluded from cases already finally determined.

6. The Respondent avers that this Court’s ruling was delivered on 3/11/2023 therefore the Supreme Court decision of 21/2/2024 in Petition No. E004 of 2023 as Consolidated with Petition No. E002 of 2023 cannot apply.

7. The Respondent avers that the Applicants being satisfied with the ruling did not appeal therefore the application herein is an afterthought and does not meet the threshold in Rule 33 of the ELRC (Procedure) Rules, 2016.

8. The Respondent avers that the Applicants are guilty of laches as they have not given reasons why it took them five months to review the ruling delivered on 3/11/2023 if they were dissatisfied with the same.

9. The Respondent avers that the doctrine of estoppel estops this Court from determining the constitutionality of section 90 of the Employment Act as it was already determined in Elias Kibathi & another v Attorney General [2021] eKLR.

Petitioners/Applicants’ Submissions 10. The Petitioners/Applicants submitted that the application was brought on grounds that this Court made an error of law and an error apparent on the face of the record in finding that it lacked jurisdiction to hear and determine the instant petition.

11. The Petitioners submitted that in making its ruling this Court heavily relied on the Court of Appeal decision in the case of National Social Security Fund Board of Trustees v Kenya Tea Growers Association & 14 others (Civil Appeal 656 of 2022) [2023] KECA 80 (KLR). Unfortunately, unbeknownst to this Court the decision had been subjected to the Supreme Court’s appellate jurisdiction and the decision had been set aside pending its determination.

12. The Petitioners/Applicants submitted that the Supreme Court in Petition No. E004 of 2023 as Consolidated with Petition No. E002 of 2023 reaffirmed and upheld that the Employment and Labour Relations Court’s has jurisdiction to hear and determine constitutional issues that arise from the employment disputes.

13. The Petitioners/Applicants submitted that the Courts have the discretion to determine whether the delay is unreasonable based on the circumstances surrounding the case. In the instant application, it constitutes 85 applicants all of whom had to be consulted before the court could be moved.

Respondent’s Submissions 14. The Respondent submitted that this Court’s decision in holding it did not have jurisdiction to determine the constitutional validity of section 90 of the Employment Act does not amount to an error of law or an error apparent on the face of the record.

15. It was further submitted that the Applicants, implication that the error was premised on the Supreme Court’s decision that ELRC had jurisdiction to determine the constitutional validity of a statute dated 21/2/2024 amounts to asking this Court to apply a judicial decision retrospectively to a matter that had been finally determined.

16. The Respondent submitted that the Applicants have failed to demonstrate the reasons for the delay in making this application therefore it should be dismissed with costs.

17. The Respondent submitted the matters canvassed in this application are akin to re-litigating matters already determined by a court of competent jurisdiction in Elias Kibathi & another v Attorney General [2021] eKLR, thus offending the doctrine of issue estoppel.

Analysis and Determination 18. The main issue for this court’s determination is whether the Petitioners/Applicants are entitled to a review of this Court’s ruling and/or order delivered on 3/11/2023.

19. Section 16 of the Employment and Labour Relations Court Act, Cap 8E, Laws of Kenya, grants this Court the power to review its judgements, awards, orders or decrees in accordance with the Rules.

20. The threshold for review is provided for under Rule 33(1) of ELRC (Procedure) Rules 2016 which states-“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-a.if there is discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the knowledge of that person or could not be produced by that person at the time when the decree was passed or the order made;b.on account of some mistake or error apparent on the face of the record;c.if the judgment or ruling requires clarification; ord.for any other sufficient reason.”

21. In the instant application, the Petitioners/Applicants premise their application for review on the ground that this Court made an error of law and error apparent on the face of the record by determining that it does not have jurisdiction to determine constitutional validity of a statute involving matters of employment and labour relations as in this case.

22. The Petitioners/Applicants argument is based on the Supreme Court decision in Kenya Tea Growers Association & 2 others v The National Social Security Fund Board of Trustees & 13 others (Petition E004 & E002 of 2023 (Consolidated)) [2024] KESC 3 (KLR) (21 February 2024) (Judgment) delivered on 21st February 2024.

23. It should be noted that the Supreme Court decision was delivered more than 3 months after this Court delivered its ruling on the matter on 3rd November 2023.

24. In the Republic v Medical Practitioners & Dentists Board & Another & another; MIO1 on behalf of MIO2 (a Minor) & another (Interested Party); Kingángá (Exparte) (Miscellaneous Civil Application 59 & 63 of 2019 (Consolidated)) [2021] KEHC 298 (KLR) (Judicial Review) (16 November 2021) (Ruling) the Court discussed in depth an error apparent on the face of the record as grounds of review as follows:-“……..The parameters are prescribed in Order 45 Rule 1 which permit an applicant to press for a review "on account of some mistake or error apparent on the face of the records or for any other sufficient reason."Paragraph (a) part of the rule deals with a situation attributable to the applicant, while paragraph (b) deals to an action attributed to the court which is manifestly incorrect or on which two conclusions are not possible. However, neither of them postulates a rehearing of the dispute. The fact that the decision on a question of law on which the judgment of the court is based has been reversed or modified by the subsequent decision of a superior court in any other case is not a ground for the review of such judgment. Where the order in question is appealable the aggrieved party has adequate and efficacious remedy so the court should exercise the power to review its order with the greatest circumspection.

25. There is a distinction which is real, though it might not always be capable of exposition, between a mere erroneous decision and a decision which could be characterized as vitiated by 'error apparent'. A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error, where without any elaborate argument one could point to the error and say here is a substantial point of law which stares one in the face, and there could reasonably be no two opinions entertained about it, a clear case of error apparent on the face of the record would be made out.A review may be granted whenever the court considers that it is necessary to correct an apparent error or omission on the part of the court. The error or omission must be self-evident and should not require an elaborate argument to be established. It will not be a sufficient ground for review that another judge could have taken a different view of the matter. Nor can it be a ground for review that the court proceeded on an incorrect exposition of the law and reached an erroneous conclusion of law. Misconstruing a statute or other provision of law cannot be a ground for review. See National Bank of Kenya Ltd vs Ndungu Njau, {1996} KLR 469 (CAK) at Page 381.

26. The term "mistake or error apparent" by its very connotation signifies an error which is evident per se from the record of the case and does not require detailed examination, scrutiny and elucidation either of the facts or the legal position. If an error is not self-evident and detection thereof requires long debate and process of reasoning, it cannot be treated as an error apparent on the face of the record for the purpose of Order 45 Rule 1. To put it differently an order or decision or judgment cannot be corrected merely because it is erroneous in law or on the ground that a different view could have been taken by the court/tribunal on a point of fact or law. In any case, while exercising the power of review, the court/tribunal concerned cannot sit in appeal over its judgment/decision. As was held in Nyamogo & Nyamogo v Kogo {2001} EA 170. “An error apparent on the face of the record cannot be defined precisely or exhaustively, there being an element of un definitiveness inherent in its very nature and it must be determined judicially on the facts of each case. There is a real distinction between a mere erroneous decision and an error apparent on the face of the record. Where an error on a substantial point of law stares one in 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 a long-drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. Again, if a view adopted by the court in the original record is a possible one, it cannot be an error apparent on the face of the record even though another view was possible. Mere error or wrong view is certainly no ground for review though it may be one for appeal.”

27. As the Indian Supreme Court stated it has to be kept in view that an error apparent on the face of record must be such an error, which must strike one on mere looking at the record and would not require any long-drawn process of reasoning on points where there may conceivably be two opinions. The rationale behind this reasoning is that there is a distinction between a mere erroneous decision and a decision which could be characterized as vitiated by 'error apparent'. A review lies only for patent error where without any elaborate argument one could point to the error and say here is a substantial point of law which stares one in the face, and there could reasonably be no two opinions entertained about it, a clear case of error apparent on the face of the record would be made out.”

28. In the instant case and with the facts and authorities, at the time the court made its determination and held that it had no jurisdiction to rule on a statute as that was a mandate elsewhere that was the correct position.The authority that the Applicant has applied in making this application for review was delivered after this ruling was delivered on 3rd November 2023. The authorities quoted herein before among others provide-:“……..The parameters are prescribed in Order 45 Rule 1 which permit an applicant to press for a review "on account of some mistake or error apparent on the face of the records or for any other sufficient reason."Paragraph (a) part of the rule deals with a situation attributable to the applicant, while paragraph (b) deals to an action attributed to the court which is manifestly incorrect or on which two conclusions are not possible. However, neither of them postulates a rehearing of the dispute. The fact that the decision on a question of law on which the judgment of the court is based has been reversed or modified by the subsequent decision of a superior court in any other case is not a ground for the review of such judgment. Where the order in question is appealable the aggrieved party has adequate and efficacious remedy so the court should exercise the power to review its order with the greatest circumspection.It is clear the tenets applicable by court in reviewing its ruling or judgment are not present in this case.

29. In particular in Misc Civil Application No. 59 and 63 of 2019 (Supra) the court held: -........The fact that a decision on question of Law or which judgment of the court is based has been reversed or modified by a subsequent decision of a superior court in any other case is not a ground for review of such a judgment. Where order in question is appealable the aggrieved party has adequate and effacious remedy or the court should exercise the power to review its order with the greatest circumspection.”

30. The court has very meticulously considered the Applicant’s application and the response and rival submissions and finds the applicant has not proven there is an error in the court’s ruling on the face of the record.The only cure for the matters raised was to appeal the ruling dated 3rd November 2023.

31. The application therefore fails and is dismissed.

32. Each party to meet their costs of this application.Orders accordingly.

DATED, SIGNED AND DELIVERED VIRTUALLY IN NAIROBI THIS 11TH DAY OF OCTOBER, 2024. ANNA NGIBUINI MWAUREJUDGEORDERIn view of the declaration of measures restricting Court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules, which requires that all judgments and rulings be pronounced in open Court. In permitting this course, this Court has been guided by Article 159(2)(d) of the Constitution which requires the Court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 1B of the Procedure Act (Chapter 21 of the Laws of Kenya) which impose on this Court the duty of the Court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes.A signed copy will be availed to each party upon payment of Court fees.