[2022] KEELRC 857 (KLR)
The application for review was dismissed because the applicant failed to demonstrate any error apparent on the face of the record or sufficient reason to warrant review. The Court noted that the only determination on record was a judgment delivered on 10 February 2021, not a ruling on 22 February 2021 as cited by...
Source-derived case information.
- Citation
- [2022] KEELRC 857 (KLR)
- Parties
- Applicant: Major (Rtd) Joseph K Chepkwony; Respondent: Kenya Defence Forces; Respondent: Hon Attorney General
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Petition 4 of 2019
- Procedural Posture
- Review Application / Ruling on Motion to Review or Set Aside Judgment
- Outcome
- application dismissed
- Legal Topics
- Review of Judgment, Filing of Submissions, Procedural Timelines
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Major (Rtd) Joseph K Chepkwony
Applicant
Kenya Defence Forces
Respondent
Hon Attorney General
Respondent
Procedural Posture
Review Application / Ruling on Motion to Review or Set Aside Judgment
Legal Issues
- 1 Whether the applicant is entitled to review or setting aside of the judgment delivered on 10 February 2021.
- 2 Whether failure to consider applicant's submissions constituted an error apparent on the face of the record.
- 3 Whether the applicant complied with the procedural requirements for filing submissions.
Ratio Decidendi
The application for review was dismissed because the applicant failed to demonstrate any error apparent on the face of the record or sufficient reason to warrant review. The Court noted that the only determination on record was a judgment delivered on 10 February 2021, not a ruling on 22 February 2021 as cited by the applicant. The applicant did not provide evidence of payment of filing fees for the submissions, which is a prerequisite for submissions to be deemed properly filed. Furthermore, the applicant failed to comply with the Court's direction to file and serve submissions by the set deadline and did not offer any explanation for this failure. The Court also found that all issues...
Court Disposition
application dismissed
Orders
- The Motion dated 5 March 2021 is dismissed.
- No order as to costs.
Full Case Text
Judgment text and source record
43 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT KISUMU
PETITION NO. 4 OF 2019
IN THE MATTER OF: ARTICLES 21, 22, 23(3), 27, 28, 35, 41, 47, 48 AND
50(2) OF THE CONSTITUTION OF KENYA, 2010
AND
IN THE MATTER OF: ALLEGED CONTRAVENTION OF RIGHTS AND
FREEDOMS UNDER ARTICLES 10, 21, 22, 23(3), 27, 28, 35, 41, 47, 48
AND 50(2) OF THE CONSTITUTION OF KENYA, 2010
AND
IN THE MATTER OF: THE FAIR ADMINISTRATIVE ACTION ACT
AND
IN THE MATTER OF: THE EMPLOYMENT ACT
BETWEEN
MAJOR (RTD) JOSEPH K CHEPKWONY......PETITIONER
v
KENYA DEFENCE FORCES.......................1st RESPONDENT
HON ATTORNEY GENERAL....................2nd RESPONDENT
RULING
1. Through a Motion dated 5 March 2021, Major (Rtd) Joseph K Chepkwony (the applicant) seeks orders:
(1) …
(2) …
(3) THAT this Honourable Court be pleased to review and or set aside the Ruling dated 2nd February 2021 and all consequential orders thereto.
(4) THAT the written submissions dated 17th December 2020 be deemed as filed upon payment of the requisite fee.
2. The Court directed the Respondents to file and serve a response to the Motion. The parties were also directed to file and exchange submissions.
3. The applicant filed his submissions on 20 January 2022 (the Respondents responses and submissions were not on file by time of preparation of this Ruling).
4. The reasons advanced in support of the review application was that the applicant had sent his submissions through email to the Court on 17 December 2021 but the registry had failed to place the submissions in the file for consideration by the Court while preparing its Ruling.
5. According to the applicant, the failure to consider the submissions was an error apparent on the face of the record as it led the Court to make adverse orders against him.
6. The Court has considered the Motion and the supporting affidavit and come to the view that the application is without merit.
7. First, the Court did not deliver any Ruling on 22 February 2021.
8. The only determination by the Court which is on record is a Judgment delivered on 10 February 2021.
9. The Court will assume that the applicant made an error as to the date of the delivery and was seeking a review of the judgment.
10. Second, the applicant has not demonstrated that he paid for the submissions. The submissions could only be deemed as properly on record after payment of the requisite filing fees (the applicant appears to admit he did not make the payment in proposed order 4 of the Motion).
11. Third, the Court had directed the applicant to file and serve his submissions on or before 4 December 2021, and he has not offered any explanation why he did not file the submissions within the agreed and set timelines.
12. Last, the applicant has not demonstrated that the Court did not consider and render itself on any of the Issues he identified in the submissions.
13. The Motion dated 5 March 2021 is dismissed with no order on costs as the Respondents did not file any response.
DELIVERED THROUGH MICROSOFT TEAMS, DATED AND SIGNED IN KISUMU ON THIS 9TH DAY OF FEBRUARY 2022.
Radido Stephen, MCIArb
Judge
Appearances
For Petitioner P. Sang & Co. Advocates
For Respondent Office of the Hon. Attorney General
Court Assistant Chrispo Aura