[2021] KEELRC 2183 (KLR)
The court found that the application for review did not meet the requirements set out under rule 33(1) of the Employment and Labour Relations Court (Procedure) Rules, 2016. The applicants were essentially seeking to re-litigate issues already determined by the court, amounting to a disguised appeal rather than a...
Source-derived case information.
- Citation
- [2021] KEELRC 2183 (KLR)
- Parties
- Applicant: Kisii County Government; Applicant: H.E. James Ongwae; Respondent: Jackson Moindi Ontegi
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 1 of 2020
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Review of Court Orders
- Outcome
- application dismissed with costs
- Judges
- MN Nduma
- Legal Topics
- Review of Court Orders, Stay of Execution, Compliance With Court Orders, Abuse of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kisii County Government
Applicant
H.E. James Ongwae
Applicant
Jackson Moindi Ontegi
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Review of Court Orders
Legal Issues
- 1 Whether the application for review meets the threshold under rule 33(1) of the Employment and Labour Relations Court (Procedure) Rules, 2016.
- 2 Whether the applicants are entitled to a review of the orders issued on 25/6/2020.
- 3 Whether the application constitutes an abuse of court process.
Ratio Decidendi
The court found that the application for review did not meet the requirements set out under rule 33(1) of the Employment and Labour Relations Court (Procedure) Rules, 2016. The applicants were essentially seeking to re-litigate issues already determined by the court, amounting to a disguised appeal rather than a proper review. The court further noted that the applicants had not complied with the self-executing orders previously issued, and their challenge regarding payment of fees was without merit. Consequently, the application was dismissed for lack of merit and as an abuse of the court process.
Court Disposition
application dismissed with costs
Orders
- The application dated 16/7/2020 is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT KISUMU
MISCELLANEOUS CIVIL APPLICATION NO. 1 OF 2020
KISII COUNTY GOVERNMENT................................1ST APPLICANT
H.E. JAMES ONGWAE...............................................2ND APPLICANT
VERSUS
JACKSON MOINDI ONTEGI.....................................RESPONDENT
RULING
1. The applicants filed application dated 16/7/2020 in which they praythat the Court reviews its ruling delivered on 25/6/2020
2. The application is opposed by grounds of opposition dated 27/11/2020 that the application is fatally defective and is an abuse of Court process.
3. The gist of the application is to have the Court change its orders in the ruling to wit:-
(i) The draft notice of Appeal is deemed as duly filed subject to payment of requisite fees and
(ii) Stay of execution is granted pending the hearing and determination of appeal on condition that the appellant deposits the decretal sum in a joint interest earning account held by the both Counsel within 30 days failing which the stay of execution shall lapse.
4. This is simply a guised appeal against the ruling of the Court and does not qualify to be an application for review in terms of rule 33(1) (a) to (d) of the Employment and Labour Relations Court (procedure) Rules, 2016.
5. The applicants want to have a second bite of the cherry, by urging the Court to reconsider its own decision. Apparently, the applicants have not complied with the order of the Court contained in paragraph 21(ii) which order is self-executing.
6. With respect to the order contained in paragraph 21(i) it follows that if there is no requisite fee then none is payable and the challenge by the applicant is superfluous.
7. The application lacks merit and is dismissed with costs.
Dated and delivered at Nairobi this 11th day of February 2021.
MATHEWS N. NDUMA
JUDGE
ORDER
In view of the declaration of measures restricting court of operations due to the COVID-19 pandemic and in light of the directions issued by his Lordship, the Chief Justice on 15th March 2020, this ruling has been delivered to the parties online with their consent. 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 18 of the Civil 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.
MATHEWS N. NDUMA
JUDGE
Appearances
Kenneth Onsembe & Co. Advocates for the Applicant
Gichaba & Co. Advocates for the respondent
Chrispo: Court clerk.