[2015] KEELRC 1008 (KLR)
The court held that the grounds advanced by the claimant—namely, lack of legal representation, unfamiliarity with court procedures, and failure to produce supporting documents—do not meet the threshold for review as contemplated by the rules. The claimant was responsible for setting the hearing date and did not seek...
Source-derived case information.
- Citation
- [2015] KEELRC 1008 (KLR)
- Parties
- Claimant: Samuel Okello Gawo; Respondent: Alibe Security Services Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 1507 of 2013
- Procedural Posture
- Review Application / Ruling on Application for Review of Dismissal Order
- Outcome
- application dismissed with costs
- Legal Topics
- Review of Judgment, Procedural Fairness, Representation by Advocate
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Samuel Okello Gawo
Claimant
Alibe Security Services Limited
Respondent
Procedural Posture
Review Application / Ruling on Application for Review of Dismissal Order
Legal Issues
- 1 Whether the claimant has established sufficient grounds for review of the dismissal order.
- 2 Whether lack of legal representation and failure to produce documents constitute grounds for review under the applicable rules.
Ratio Decidendi
The court held that the grounds advanced by the claimant—namely, lack of legal representation, unfamiliarity with court procedures, and failure to produce supporting documents—do not meet the threshold for review as contemplated by the rules. The claimant was responsible for setting the hearing date and did not seek an adjournment when unprepared. The subsequent appointment of an advocate is not a valid ground for review. The proper recourse for the claimant, if dissatisfied with the judgment, was to file an appeal rather than seek review. Accordingly, the application for review was dismissed with costs.
Court Disposition
application dismissed with costs
Orders
- The application for review is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF KENYA AT NAIROBI
CAUSE NUMBER 1507 OF 2013
SAMUEL OKELLO GAWO……………………….......…….. CLAIMANT
VERSUS
ALIBE SECURITY SERVICES LIMITED………………….RESPONDENT
RULING
1. By a motion filed on 24th November, 2014 the claimant prays that the Court reviews and sets aside the order of Hon. Justice Marete which dismissed the claimant’s claim and that the same be set down for hearing afresh.
2. The application was brought on the grounds that the applicant was not represented in the course of the entire proceedings and since he was not conversant with procedural technicalities, he did not prosecute his claim to the expected standards. The applicant further stated that when the applicant presented himself in Court he was not ready to proceed as he did not have the requisite documents to support his claim. The applicant states that he has since managed to appoint an advocate to represent him and has sufficient evidence to establish an employer- employee relationship.
3. The respondent opposed the application stating that the same was brought over four months after the judgment hence inordinately late. Counsel for the respondent further submitted that the suit was heard on merit and the claimant given an opportunity to prosecute his case besides the claimant is the one who took the date of hearing and proceeded without producing any documents or calling any witness.
4. This court is clothed with power to review its decisions however such review can only be done where the applicant satisfies the Court that there is discovery of new facts or materials which after exercise of due diligence the applicant could not lay his or her hands on at the time of the trial. The Court will also review its judgment or order when the same is made per incuriam. That is to say without taking into account the provisions of existing law regarding the matter.
5. The applicant in this case alleges that he did not know the case was due to proceed for hearing on the material day hence did not carry with him documents in support of his case. He further alleges that he is a layman not familiar with Court process hence did not prosecute his case well. He had since hired an advocate hence wanted the case to start de novo.
6. As much as these are not grounds for review contemplated by the rules of the Court, it is also curious that the applicant is the one who set the suit down for hearing. If he was not prepared to proceed, nothing prevented him from seeking adjournment to prepare. There is nothing on record to show that the applicant applied for adjournment and was refused.
7. The minutes on the Court file on the material date show that the claimant informed the Court that he served the respondent who refused to acknowledge service and he was ready to proceed with his case.
8. The claim that the claimant has now appointed an advocate to prosecute the claim on his behalf is not a sufficient ground for review. If indeed the claimant appreciated the need for legal representation nothing prevented him from hiring one earlier.
9. The learned Judge heard the claimant and rendered his judgment. The Judge formed the view that the claimant did not sufficiently prove his case and dismissed the same. If the claimant was dissatisfied the proper thing to have done was to file an appeal.
10. In conclusion, the Court is of the view that this is not a proper case to exercise the power to review and hereby dismisses the application with costs.
11. It is so ordered.
Dated at Nairobi this 22nd day of May 2015
Abuodha J. N.
Judge
Delivered this 22nd day of May 2015
In the presence of:-
……………………………………………………………for the Claimant and
………………………………………………………………for the Respondent.
Abuodha J. N.
Judge