[2014] KEELRC 1323 (KLR)
The court found that the applicants had presented new evidence that was not available at the time of the original hearing and that the court had erroneously relied on the Public Service Commission Manual 2007 instead of the 2008 version. These circumstances satisfied the requirements for review under Rule 32(1) of...
Source-derived case information.
- Citation
- [2014] KEELRC 1323 (KLR)
- Parties
- Applicant: Jared Omondi Ober; Applicant: John Oluoch Orinda; Respondent: Amended County Government of Homa Bay
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Cause 39 of 2013
- Procedural Posture
- Review Application / Ruling on Application for Review of Judgment
- Outcome
- application for review allowed; judgment set aside; case to be heard de novo before another judge
- Judges
- HS Wasilwa
- Legal Topics
- Review of Judgment, Collective Bargaining Agreement, New Evidence, Procedural Fairness
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jared Omondi Ober
Applicant
John Oluoch Orinda
Applicant
Amended County Government of Homa Bay
Respondent
Procedural Posture
Review Application / Ruling on Application for Review of Judgment
Legal Issues
- 1 Whether the applicants have presented new and important evidence justifying review of the court's earlier judgment.
- 2 Whether the court erred by relying on the Public Service Commission Manual 2007 instead of the 2008 version.
- 3 Whether the judgment delivered on 28.6.2013 should be set aside and the case reopened.
Ratio Decidendi
The court found that the applicants had presented new evidence that was not available at the time of the original hearing and that the court had erroneously relied on the Public Service Commission Manual 2007 instead of the 2008 version. These circumstances satisfied the requirements for review under Rule 32(1) of the Industrial Court (Procedure) Rules. Consequently, the court set aside its earlier judgment and ordered that the case be reopened and heard afresh before a different judge, with costs to be in the cause.
Court Disposition
application for review allowed; judgment set aside; case to be heard de novo before another judge
Orders
- The judgment delivered on 28.6.2013 is set aside.
- The case is to be reopened and heard de novo before another judge.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE INDUSTRIAL COURT OF KENYA AT KISUMU
CAUSE NO. 39 OF 2013
(FORMERLY NAI CAUSE NO. 751/11)
(BEFORE HON. JUSTICE HELLEN S. WASILWA ON 18TH SEPTEMBER, 2014)
JARED OMONDI OBER ......................................................... 1ST CLAIMANT
JOHN OLUOCH ORINDA ….................................................... 2ND CLAIMANT
-VERSUS-
AMENDED COUNTY GOVERNMENT OF HOMA BAY ........... RESPONDENT
R U L I N G
The application before court is the one dated 8th July 2013 filed by the claimant applicants seeking orders for review. The application is based on the grounds that are not very clear.
The claimant applicants filed their memorandum of review and state that they wish to rely on the Collective Bargaining Agreement signed by the Association of Local Government Employers and the Kenya Local Government Workers Union. The memorandum went on to restate the claimants case but without bringing out the grounds upon which this court can review it's judgment delivered on 28. 6.2013.
The respondents have filed their reply to the memorandum of review and it's submission and states that there is no new evidence warranting the review of this case. The parties have also filed their respective submissions upon which they want this court to rely upon in reaching it's determination.
The applicants submitted that they have now submitted the documents that were not previously at the disposal of the court and had the court been aware of them, it would have reached a different verdict. They also submitted that this court has powers to review it's judgment as it had erroneously relied on Public Service Commission Manual 2007 which had been overtaken by events instead of the one of 2008.
The respondents failed to file their submissions as expected. Under S. 16 of the Industrial Court Act 2011, the Industrial Court has powers to review it's judgments, awards, orders or decrees in accordance with the Rules. Rule 32(1) provides for the instances under which the court may review it's orders/judgments e.t.c.
Under Rule 32(1):-
“(a) If there is a 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; or
(b) On account of some mistake or error apparent on the face of the record, or ---”
The applicants aver that they have new evidence that they didn't produce at the time of the hearing and that the court erroneously relied on an expired Manual of 2007 instead of the one of 2008.
On account of this submission, this court finds that it would be in order if the parties would be allowed to present their alleged new evidence. It was also in error for the court to rely on the 2007 Manual instead of the 2008 one. The court therefore reviews it's judgment passed on the 28. 6.2013. The judgment is set aside. The court orders the case re-open to start denovo before another judge. The hearing to be set down within 3 months. Cost to be in the cause.
HELLEN S. WASILWA
JUDGE
18/9/2014
Appearances:-
Claimant applicants present
N/A for respondents
CC. Wamache