[2017] KEELRC 530 (KLR)
The court found that it had already determined an application seeking to set aside the order dismissing the cause and for reinstatement. The claimant, if dissatisfied with that decision, should have pursued an appeal rather than filing a fresh application for review. The court held that the present application was...
Source-derived case information.
- Citation
- [2017] KEELRC 530 (KLR)
- Parties
- Claimant: Peter Ocholi; Respondent: Chairman, Board of Management, Afraha High School
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Cause 593 of 2014
- Procedural Posture
- Review Application / Ruling on Application to Review and Reinstate Dismissed Cause
- Outcome
- application dismissed with costs to the respondent
- Judges
- MSA Makhandia
- Legal Topics
- Reinstatement of Dismissed Suit, Review of Court Orders, Abuse of Court Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Ocholi
Claimant
Chairman, Board of Management, Afraha High School
Respondent
Procedural Posture
Review Application / Ruling on Application to Review and Reinstate Dismissed Cause
Legal Issues
- 1 Whether the court should review, vary or set aside its previous order dismissing the claimant's suit.
- 2 Whether the claimant's suit should be reinstated for hearing.
- 3 Whether the application for review is competent or an abuse of court process.
Ratio Decidendi
The court found that it had already determined an application seeking to set aside the order dismissing the cause and for reinstatement. The claimant, if dissatisfied with that decision, should have pursued an appeal rather than filing a fresh application for review. The court held that the present application was an attempt to re-litigate the same issues previously determined, amounting to an abuse of the court process. Additionally, the application for review was filed nearly two years after the order sought to be reviewed, with no explanation for the delay. The court therefore dismissed the application as incompetent and an abuse of process, awarding costs to the respondent.
Court Disposition
application dismissed with costs to the respondent
Orders
- The motion dated 2 May 2017 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 NAKURU
CAUSE NO. 593 OF 2014
PETER OCHOLI CLAIMANT
v
CHAIRMAN, BOARD OF MANAGEMENT,
AFRAHA HIGH SCHOOL RESPONDENT
RULING NO. 2
1. This Cause was initially dismissed on 13 February 2015 because of the Claimant’s and/or his advocate’s failure to attend in response to a show cause notice.
2. On 26 February 2015, the Claimant moved Court to reinstate the Cause, and in a ruling rendered on 15 May 2015, the Court declined to exercise its discretion to reinstate the Cause.
3. On 11 May 2017, the Claimant again moved Court seeking
1. THAT the Order of the Honourable J RADIDO in the NAKURU E & LR CAUSE NO. 593 OF 2014 dismissing the claimant’s suit herein together with all other consequential Orders be reviewed varied and/or set aside.
2. THAT the Claimant’s suit be reinstated for hearing.
3. THAT the costs of this application be provided for.
4. The Respondent filed a replying affidavit in opposition to the application and the Court heard oral arguments on 10 July 2017.
5. The Court has considered the application and the submissions and come to the conclusion that the application is incompetent and an abuse of the court process.
6. This Court already rendered itself on an application seeking the setting aside of the order dismissing the Cause and reinstatement of the same onto the Court’s docket.
7. In terms of the hierarchical nature of the judicial organ in Kenya, the Claimant ought to have appealed against the said ruling if he was dissatisfied or felt the Court exercised its discretion injudiciously.
8. Further, the proposed order seeking review is but just another way of attaining what the Court declined on 15 May 2015.
9. The Court further notes that the instant application seeking review has been presented nearly 2 years after the order/ruling sought to be reviewed without any explanation at all for the interregnum.
10. The Court declines the invitation by the Claimant and dismisses the motion dated 2 May 2017 with costs to the Respondent.
Delivered, dated and signed in Nakuru on this 6th day of November 2017.
Radido Stephen
Judge
Appearances
For Claimant Ms. Kiberenge instructed by Geoffrey Otieno & Co. Advocates
For Respondent Mr. Ooga instructed by Rodi Orege & Co. Advocates
Court Assistants Nixon/Martin