[2016] KEELRC 556 (KLR)
The court held that the application for review did not satisfy the requirements under Rule 32 of the Industrial Court (Procedure) Rules 2010. There was no discovery of new evidence, no mistake apparent on the face of the record, no breach of written law, and no sufficient reason to justify review. The court found...
Source-derived case information.
- Citation
- [2016] KEELRC 556 (KLR)
- Parties
- Applicant: Joseph Ashioya & 165 Others; Respondent: Kenya United Steel Co. Limited; Respondent: Pricewaterhouse Coopers Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Cause 10 of 2012
- Procedural Posture
- Review Application / Ruling on Application for Review of Previous Orders
- Outcome
- application for review rejected
- Judges
- J Rika
- Legal Topics
- Review Jurisdiction, Receiver Manager Liability, Procedure for Review, Grounds for Review, Industrial Court Rules
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Ashioya & 165 Others
Applicant
Kenya United Steel Co. Limited
Respondent
Pricewaterhouse Coopers Limited
Respondent
Procedural Posture
Review Application / Ruling on Application for Review of Previous Orders
Legal Issues
- 1 Whether the application for review of the orders dismissing the claim against the 2nd Respondent meets the threshold under Rule 32 of the Industrial Court (Procedure) Rules 2010.
- 2 Whether a Receiver/Manager can be sued in its own name in employment disputes before the Industrial Court.
- 3 Whether alleged misapprehension of law by a predecessor judge constitutes sufficient reason for review.
Ratio Decidendi
The court held that the application for review did not satisfy the requirements under Rule 32 of the Industrial Court (Procedure) Rules 2010. There was no discovery of new evidence, no mistake apparent on the face of the record, no breach of written law, and no sufficient reason to justify review. The court found that the main contention was an alleged misapprehension of the law by the predecessor judge regarding the liability of Receiver/Managers, which is not a ground for review but rather a ground for appeal. The court emphasized that review is not an avenue for the court to sit on appeal of its own decisions and that legal development should occur through the appellate process....
Court Disposition
application for review rejected
Orders
- The application dated 3rd July 2014 seeking review of the orders made on the 26th July 2013 is rejected.
- Costs in the cause.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE INDUSTRIAL COURT AT MOMBASA
CAUSE NUMBER 10 OF 2012
BETWEEN
JOSEPH ASHIOYA & 165 OTHERS …………...........…………….…CLAIMANTS
VERSUS
1. KENYA UNITED STEEL CO. LIMITED...................................……RESPONDENT
2. PRICEWATERHOUSE COOPERS LIMITED ….... INTENDED 2ND RESPONDENT
RULING
1. Hon. Judge Radido Stephen, delivered a Ruling dated 26th July 2013, dismissing the Claim against the 2nd Respondent, on the ground that the 2nd Respondent was a Receiver/Manager of the 1st Respondent, and could not be sued in its own name. The Claim against the 2nd Respondent was found to be incompetent, but the Claimants were allowed to proceed against the 1st Respondent.
2. The Claimants filed an Application dated 3rd July 2014, seeking to have the orders of 23rd July 2013 reviewed, and the Claim against the 2nd Respondent reinstated. The 2nd Respondent is opposed to the Application to have it rejoin the proceedings. Parties filed their respective Affidavits supporting their positions, and agreed to have the Application considered and determined on the strength of these Affidavits and Submissions.
3. In their Submissions, the Claimants list and argue 7 Grounds in support of the Application. These are mainly on matters of law, revolving around the finding by the predecessor Judge, that Receiver/Managers cannot be sued in their own names. They submit, in a manner characteristic of appellate language, that the predecessor Judge erred. They go on to give legal arguments on why the Judge erred.
4. In the respectful view of this Court, the Application has not been shown to fall within Rule 32 of the Industrial Court [Procedure] Rules 2010, which regulates the review jurisdiction of the Court. There is no discovery of fresh matter of evidence; there is no mistake apparent on the face of the record; the Ruling does not breach any written law; it does not require clarification; and there in no other sufficient reason to justify review.
5. The thrust of the Application is that the predecessor Judge misapprehended the law on Receiver / Managers. Such misapprehension, if indeed there was misapprehension, should be corrected by the Court of Appeal. Misapprehension of the law is not a sufficient reason to justify review. Contentious legal concepts are best taken through the process of distillation, within the hierarchy of Courts, rather than being circulated before different Judges in the same Court. Distillation allows the law to develop. This Court thinks the submission by the intended 2nd Respondent, that review would amount to the Court sitting on appeal, is persuasive. The Grounds listed by the Claimants in seeking review, should properly be Grounds of Appeal.
6. The Application for review of the orders made on 26th July 2013 is rejected. The Claimants have the option to pursue an Appeal against those orders, or prosecute the Claim against the remaining Respondent.
IT IS ORDERED:-
a) The Application dated 3rd July 2014 seeking review of the orders made on the 26th July 2013 is rejected.
b) Costs in the Cause
Dated and delivered at Mombasa this 29th day of September 2016
James Rika
Judge