1. The Appellant filed application dated 20th July, 2023 under sections 12(2) and section 16 of the Employment and Labour Relations Court Act, 2011; Rule 33 of the Employment and Labour Relations Court (Procedure) Rules 2016 seeking for orders of the court to review and set aside the judgment of 19th May,2023.
2. The court was called upon to consider the jurisdictional issue of the trial court, settlement agreement dated 23rd June, 2016 and grounds of Appeal.
3. The application was supported by the Affidavit of Beutah Maroko the Director of the Appellant Company herein who averred that the court made inadvertent obvious errors which can be cured through review of the Judgment.
4. The Appellant averred that there was an error apparent on the face of the record in that the Court did not address the question of the trial court lacking jurisdiction to deal with the of Work Injury Benefits which was within the reach of the Director of Occupation Safety and Health Services to determine.
5. The Appellant further averred that there was an error apparent on the face of the record in that the judge found that the settlement agreement was not produced before the trial court yet it was annexed to his supporting affidavit dated 12th April, 2018. The judge did not consider unjust enrichment by the Respondent who had been paid Kshs 203,435/= as settlement in full.
6. The Appellant averred that the Judge did not consider its grounds of appeal specifically grounds 9-13 which talked about the issue of jurisdiction and failure by Appellant to put in a defence.
7. The Appellant averred that the application was brought without unreasonable and /or undue delay. That no appeal had been preferred against the said judgement and decree hence sufficient reason for review of the judgment.
8. In reply, the Respondent filed its grounds of opposition/points of law dated 21st August,2023. The Respondent opposed the Appellant’s application and averred that the issues raised in the application were raised before the appellate court and in view of section 7, explanation 5” Any relief claimed in a suit which is not expressly granted by the decree shall be deemed to have been refused” and under explanation 4, the issue was before court and rejected hence res judicata.
9. The Respondent averred that the matters now raised, relate to alleged errors of law which can only be litigated in an appeal as opposed to a review. The issue of jurisdiction was litigated on fairly and squarely and submitted on. It can also be raised on appeal.
10. The Respondent averred that the Application is an attempt to have a second bite of the cherry and one cannot reprobate and approbate a judgement or parts of a decision. That this application was misconceived and reeks of abuse of court process/is tailored to scuttle the ongoing execution.
11. The Respondent further averred that no relief to stay execution or offer for security has been made and the issue of jurisdiction of WIBA matters has since been resolved through a Gazette Notice and no longer of moment before courts.
DETERMINATION
12. I have considered the pleadings and submissions filed by the parties herein and I proceed to analyse them as follows.
13. Rule 33 of the Employment and Labour Relations Court (Procedure) Rules, 2016 provides for review as follows:-
(1)A person who is aggrieved by a decree or an order from which an appeal is allowed but from which no appeal is preferred or from which no appeal is allowed, may within reasonable time, apply for a review of the judgment or ruling—
(a) if there is 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;
(b) on account of some mistake or error apparent on the face of the record;
(c) if the judgment or ruling requires clarification; or
(d) for any other sufficient reason.
15. When it comes to the grounds of review the Applicant relies on mistake or error on face of record. The Appellant raises issues of the appellate court not considering that the trial court did not have jurisdiction to entertain WIBA matters, the settlement agreement and its grounds on the memorandum of appeal.
16. The Respondent on the other hand has raised its grounds on points of law and stated that if the Appellate Court went silent on the issue of jurisdiction it means it was denied, that the Appellant did not file a defence in order to produce the stated settlement agreement. That the issue need be raised in an appeal court not a review forum.
17. The Court of Appeal had the following to say in an application for review in the case of National Bank of Kenya Ltd vs Ndungu Njau.
“A review may be granted whenever the court considers that it is necessary to correct an apparent error or omission on the part of the court. The error or omission must be self-evident and should not require an elaborate argument to be established. It will not be a sufficient ground for review that another Judge could have taken a different view of the matter. Nor can it be a ground for review that the court proceeded on an incorrect exposition of the law and reached an erroneous conclusion of law. Misconstruing a statute or other provision of law cannot be a ground for review.
18. Also in Chandrakhant Joshibhai Patel -v- R [2004] TLR, 218 quoted in above case it had been held that an error stated to be apparent on the face of the record:
"...must be such as can be seen by one who runs and reads, that is, an obvious and patent mistake and not something which can be established by a long drawn process of reading on points on which may be conceivably be two opinions."
19. From the above proposition it is clear the first the issue of jurisdiction is a point of law which is not a ground for review. The Court has keenly looked at orders made in the judgment of 19th May, 2023 and found that it held that the Appellant did not produce the said settlement agreement before the trial court for consideration hence it could not be an error on the face of record or discovery of new evidence to warrant a review. The court is therefore of the view that the Appellant can only seek its redress on appeal since there was no error on the face of record as claimed.
20. The application is therefore found without merit and is hereby dismissed with costs.
21. It is so ordered.
Dated at Nairobi this 26th day of January, 2024
Delivered virtually this 26th day of January, 2024
Abuodha Nelson Jorum
Judge