[2021] KEELRC 2158 (KLR)
The court found that there was an error apparent on the face of the record in its earlier judgment, specifically the finding that the respondents had not filed a replying affidavit. Upon review, the court acknowledged the existence and contents of the replying affidavit, which had been inadvertently omitted from the...
Source-derived case information.
- Citation
- [2021] KEELRC 2158 (KLR)
- Parties
- Petitioner: Major (Rtd) Joel Kiprono Roprop; Respondent: County Secretary–County Government of Bomet; Respondent: County Public Service Board Bomet County; Respondent: County Government of Bomet
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Petition 71 of 2018
- Procedural Posture
- Review Application / Ruling on Application for Review of Judgment
- Outcome
- application for review dismissed with correction of record; no order as to costs
- Judges
- MN Nduma
- Legal Topics
- Judgment Review, Error on Face of Record, County Government Employment, Recruitment Process, Affidavit Filing, Procedural Fairness
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Major (Rtd) Joel Kiprono Roprop
Petitioner
County Secretary–County Government of Bomet
Respondent
County Public Service Board Bomet County
Respondent
County Government of Bomet
Respondent
Procedural Posture
Review Application / Ruling on Application for Review of Judgment
Legal Issues
- 1 Whether there was an error apparent on the face of the record regarding the respondents' filing of a replying affidavit.
- 2 Whether the presence of the replying affidavit materially alters the findings of the original judgment.
- 3 Whether the judgment should be reviewed, altered, or set aside based on the new evidence.
Ratio Decidendi
The court found that there was an error apparent on the face of the record in its earlier judgment, specifically the finding that the respondents had not filed a replying affidavit. Upon review, the court acknowledged the existence and contents of the replying affidavit, which had been inadvertently omitted from the record at the time of judgment. However, after considering the affidavit, the court determined that its contents did not materially alter the findings or conclusions reached in the original judgment regarding the issues raised in the petition. Consequently, the court corrected the record to acknowledge the affidavit but declined to alter, review, or set aside its substantive...
Court Disposition
application for review dismissed with correction of record; no order as to costs
Orders
- The error in paragraph 4 of the judgment is corrected to acknowledge the respondents' replying affidavit.
- The substantive findings of fact and law in the original judgment remain unaltered.
Full Case Text
Judgment text and source record
35 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT KISUMU
PETITION NO. 71 OF 2018
MAJOR (RTD) JOEL KIPRONO ROPROP....................................PETITIONER
VERSUS
COUNTY SECRETARY–
COUNTY GOVERNMENT OF BOMET........1STAPPLICANT/RESPONDENT
COUNTY PUBLIC SERVICE BOARD
BOMET COUNTY ..........................................2ND APPLICANT/RESPONDENT
COUNTY GOVERNMENT OF BOMET..... 3RD APPLICANT/RESPONDENT
RULING
1. The Applicant vide Application dated 28/5/2020 prays for an Order to review the Judgment of the Court delivered on 9/3/2020 on grounds that the Court erroneously found that a replying affidavit had not been filed by the respondents.
2. The respondents have attached a copy of a replying affidavit to thepetition filed on 14/10/2018 which was apparently not on record at the time the Court delivered its judgment
3. The Court finds that in view of this fact, there is an error apparent on theface of the judgment of Court at paragraph 4 of the Judgment where the Court found: -
‘the respondents did not file any response to the petition and so the facts set out in the petition have not been contradicted and/or traversed.”
4. The Court has considered the contents of the replying affidavit in whichthe respondents under paragraphs 4,5, 6, 7, 8, 9, and 10 state that the 2nd respondent is mandated under Section 59 of the County Government’s Act to recruit and fill vacant positions and was doing so lawfully as it has always done in the past.
5. That candidates are invited, shortlisted and interviewed before shortlisting is done. That advertisements are done pursuant to requests by departments, based on their needs.
6. That in this case the decision to recruit was initiated by line departments through the office of the County Secretary and therefore, the allegations by the Petitioner is baseless and ill-conceived and that the Petitioner is a busy body that has filed numerous claims against the 2nd respondent.
7. That the petition be dismissed with costs.
8. The mandate of the Court seized with an application for review is not torewrite a judgment already delivered but to correct an error on the face of the record of the judgment and any consequence emanating from the said error.
9. The Court has corrected its error under paragraph 4 of the judgment andfinds that the replying affidavit by the respondents had been inadvertedly missing in the file at the time of judgment. The Court has now considered the aforesaid deposition by the 2nd respondent and has come to the conclusion that the same does not materially alter the finding of the Court in answer to issues set out in paragraph 59(a) (b) and (c) of the Judgment.
10. The Court does not therefore alter, review and/or set aside its findings of fact and law under paragraphs 8, 9 and 10 of the Judgment.
11. The application for the review of the judgment of the Court dated 9/3/2020 lacks merit safe for the error duly corrected and is dismissed with no order as to 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
Amule for Rodgers for Petitioner
Mr. Okello for Koech for Respondent
Chrispo: Court clerk