[2014] KEELRC 1136 (KLR)
The court held that the Claimant's dissatisfaction with the finding that the Grievant was a casual employee does not meet the threshold for review as set out in the relevant statutory provisions. The court emphasized that a review is not an avenue for re-arguing the merits of the case or for the court to sit on...
Source-derived case information.
- Citation
- [2014] KEELRC 1136 (KLR)
- Parties
- Applicant: Transport Workers Union; Respondent: Hajji Issa Adams & Sons Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 2293 of 2012
- Procedural Posture
- Review Application / Ruling on Application for Review of Award
- Outcome
- application dismissed
- Judges
- L Ndolo
- Legal Topics
- Review of Award, Casual Employment Status, Employment Act Interpretation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Transport Workers Union
Applicant
Hajji Issa Adams & Sons Limited
Respondent
Procedural Posture
Review Application / Ruling on Application for Review of Award
Legal Issues
- 1 Whether the court erred in finding the Grievant was a casual employee under the repealed Employment Act.
- 2 Whether the application for review meets the threshold under Section 16 of the Industrial Court Act and Rule 32 of the Industrial Court (Procedure) Rules, 2010.
Ratio Decidendi
The court held that the Claimant's dissatisfaction with the finding that the Grievant was a casual employee does not meet the threshold for review as set out in the relevant statutory provisions. The court emphasized that a review is not an avenue for re-arguing the merits of the case or for the court to sit on appeal of its own decision. Since the Claimant did not demonstrate discovery of new evidence, error apparent on the face of the record, or breach of written law, the application for review was dismissed. The proper recourse for the Claimant, if dissatisfied, is to appeal to the Court of Appeal, not to seek a review before the same court.
Court Disposition
application dismissed
Orders
- The Claimant's application for review is dismissed.
- There is no order as to costs.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE INDUSTRIAL COURT OF KENYA AT NAIROBI
CAUSE NO 2293 OF 2012
TRANSPORT WORKERS UNION......................................................CLAIMANT
VS
HAJJI ISSA ADAMS & SONS LIMITED...................................RESPONDENT
RULING
1. The Claimant's application dated 14th October 2013 seeks review of the award delivered by this Court on 17th September 2013. The main ground on which the application for review is based is that the Court failed to appreciate that the Grievant was not a casual employee.
2. The Respondent states that the Claimant's application lacks merit and should therefore be dismissed. In a replying affidavit and a further affidavit sworn by Karim Mussa Bux on 19th November 2013 and 24th February 2014 respectively, it is deponed that the Grievant was a casual employee as defined in the repealed Employment Act (Cap 226) which was the applicable employment law at the time the Grievant left the Respondent's employment.
3. The powers of the Industrial Court to review its own decisions are donated by Section 16 of the Industrial Court Act, 2011 and Rule 32 of the Industrial Court (Procedure) Rules, 2010.
4. Rule 32(1) provides as follows:
32. (1) A person who is aggrieved by a decree or an order of the Court may apply for a review of the award, judgment or ruling—
(a) if there is a discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the knowledge of that person or could not be produced by that person at the time when the decree was passed or the order made; or
(b) on account of some mistake or error apparent on the face of the record; or
(c) on account of the award, judgment or ruling being in breach of any written law;
5. The Claimant's application stems from its dissatisfaction with the finding of the Court that the Grievant was a casual employee as defined in the repealed Employment Act (Cap 226). While the Claimant is entitled to hold a different view, it seems to me that the decision rendered by this Court can only be challenged by way of an appeal in the Court of Appeal. To hold otherwise would be tantamount to asking the Court to sit on appeal of its own decision.
6. The Claimant's application for review therefore fails and is dismissed with no order for costs.
DATED SIGNED AND DELIVERED IN OPEN COURT AT NAIROBI THIS 14TH DAY OF JULY 2014
LINNET NDOLO
JUDGE
Appearance:
Mr. Nasib Makuwa (Union Representative) for the Claimant
Ms. Wachira for the Respondent