Lumadede v Attorney General (Civil Appeal 78 of 2019) [2024] KECA 315 (KLR) (22 March 2024) (Judgment)
Neutral citation:
[2024] KECA 315 (KLR)
Republic of Kenya
Civil Appeal 78 of 2019
FA Ochieng, PM Gachoka & WK Korir, JJA
March 22, 2024
Between
Robert Mwisani Lumadede
Appellant
and
Hon. Attorney General
Respondent
(Being an appeal against the Ruling and Order of the Employment and Labour Relations Court of Kenya at Nakuru (Monica Mbaru, J.) dated 7th February, 2019 in Misc. Appl. No. 164 of 2018
Cause 164 of 2018
)
Judgment
1.The appeal before us arises from the ruling of the Environment and Land Court (M. Mbaru J) delivered on 7th February 2019.
2.The ruling in question was in relation to an application dated 11th December 2018, through which the appellant herein had sought the review of a ruling dated 22nd November 2018.
3.In order to get a better appreciation of the matter, it is imperative that a brief historical background be laid out herein.
4.On 23rd October 2012, the appellant lodged an Originating Summons dated 22nd October 2012. The said originating summons was lodged at the Chief Magistrate’s Court, Nakuru; and the single relief that was sought was in the following terms;
5.By his supporting affidavit, the applicant informed the court that the matters began way back, in the year 2006 when the Ministry of Housing wrote a memo stating that there would be a re- deployment of a number of officers to different Government offices.
6.The appellant said that he was deployed to the Ministry of Water Development. However, as he was deployed to a junior position, he raised a complaint. However, instead of sorting out the complaint, the Ministry proceeded to retire him.
7.As a result of the said retirement, the appellant asserted that he suffered great loss and damage.
8.Being aware of the need to provide the court with an explanation for having failed to file a suit in a timely manner, the appellant deponed thus, in his supporting affidavit;
9.Annexed to the originating summons was a copy of the appellant’s “Intended Plaint”. At paragraph 4 of the said draft plaint, the appellant stated that;
10.As a consequence, the appellant’s claim for damages was pegged upon the contention that the Ministry had failed, neglected, and/or refused to have him reinstated and thereafter promote him to the new grade.
11.Having given due consideration to the summons, (which had been transferred to the Employment and Labour Relations Court, at Nakuru), the learned Judge, noted that the matter was premised on Employment and Labour Relations. Such relations are contractual.
12.In the circumstances, the court held that the provisions of Sections 27 and 28 of the Limitation of Actions Act did not apply to this case. It was the court’s understanding that;
13.Following the rejection of the originating summons, the appellant filed an application for a review of the ruling.
14.On 7th February 2019 the Employment and Labour Relations Court dismissed the application for review.
15.Being dissatisfied with the decision dated 7th February 2019, the appellant filed an appeal before this Court. In his memorandum of appeal, the appellant raised the following six grounds of appeal; -
16.On 2nd November 2023 when the virtual hearing took place, the appellant represented himself, whilst the respondent did not show up.
17.The appeal was canvassed by way of written submissions, which none of the parties highlighted.
18.Notwithstanding the absence of the response, the onus was still upon the appellant to demonstrate that his appeal was merited.
19.As far as the appellant was concerned, he did not take action out of time, as the time spent when he was awaiting a response from the Ministry cannot be taken into account.
20.The appellant referred to matters of fact which had not been taken into account by the trial court.
21.He also submitted that it was in the best interests of justice, and for a good working relationship, that the appellant should consult the Ministry of Justice and Constitutional Affairs, as well as the office of the Attorney General, before instituting litigation. It is in the process of the said consultation that the perceived element of delay arose.
22.The appellant told this Court that he instituted the litigation after he realized that the respondent was not being genuine. He had come to the realization that the Ministry was frustrating him.
23.The originating summons was described by him as being the last option, through which the appellant could have his rights protected.
24.In the circumstances, the appellant invoked the provisions of Article 159 of the Constitution of the Republic of Kenya and invited this Court to disregard procedural technicalities.
25.We have given due consideration to the grounds of appeal as well as the submissions on record. We have also given careful consideration to the record of the proceedings before the court from whose decision this appeal arose.
26.The sole issue that falls for determination is whether or not the learned Judge erred when she declined the application for review of her earlier ruling. The answer lies in determining the scope of the remedy of review.
27.Pursuant to the provisions of Section 16 of the Employment and Labour Relations Court Act, 2011 the said court is clothed with the power to review its judgments, awards, orders, or decrees. It is expressly stipulated that the court shall when exercising its power to review, do so in accordance with the Rules.
28.The applicable rules in this instance are the Employment and Labour Relations Court (Procedure) Rules, 2016. The said rules were already in place by the time when the appellant sought review of the court’s ruling.
29.Pursuant to Rule 33(1) of the Employment and Labour Relations Court (Procedure) Rules;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;b.on account of some mistake or error apparent on the face of the record;c.if the judgment or ruling requires clarification; ord.for any other sufficient reasons.”
30.In accordance with that rule, the appellant should have demonstrated to this Court that although his application fell within any one or more of the areas spelled out in rule 33(1), the trial court had declined the application for review.
31.In the case of Pancrast Swan v Kenya Breweries Ltd [2014] eKLR, the court stated as follows:
32.We have re-evaluated all the proceedings before the Employment and Labour Relations Court, but we did not find any trace of the new and important matter or evidence that the appellant had come across after the learned Judge had first rejected the application for extension of time. In the case of Tokesi Mambili & Others v Simion Litsanga [2004] eKLR, the court held thus:
33.Secondly, the appellant has not demonstrated to this Court that there was either an error or mistake apparent on the face of the record. In the case of Nyamogo & Nyamogo v Kogo [2001] EA 174 the court held that:
34.Thirdly, the appellant has not demonstrated that the original decision, which he sought to have reviewed, required clarification.
35.Finally, the appellant has failed to demonstrate to us that he had placed any other sufficient reason before the Employment and Labour Relations Court, that could warrant a review of the ruling dated 22nd November 2018. In the case of The Official Receiver and Liquidator v Freight Forwarders Kenya Limited [2000] eKLR the court stated that:
36.Be that as it may, this appeal arises from a decision of the trial court made by the learned Judge in the exercise of judicial discretion. It is trite that the circumstances in which this court can interfere with the exercise of discretion by a lower court are circumscribed. This court may only interfere with the exercise of such discretion when, in the words of the predecessor of this court in Mbogo and Another v Shah [1968] EA 93, it is satisfied that the decision of the lower court was wrong:
37.Consequently, we find no reason to interfere with the learned Judge’s exercise of discretion in dismissing the application for review.
38.In the result, we find that the appellant has not persuaded us that the decision to reject the application for review was erroneous.
39.The appeal lacks merit and is hereby dismissed.
DATED AND DELIVERED AT NAKURU THIS 22ND DAY OF MARCH, 2024.F. OCHIENG....................................JUDGE OF APPEALM. GACHOKA, CIArb, FCIArb....................................JUDGE OF APPEALW. KORIR....................................JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR