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ELRCDismissedNot stated in judgment· [2014] KEELRC 139 (KLR)

Peter Gikaria Wambugu v Muhotetu Farmers Co-operative Society [2014] KEELRC 139 (KLR)

Industrial Court (Employment and Labour Relations Court)
7 November 2014
DMD.K. Njagi Marete
803 words in judgment
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The bottom line

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A Kenyan employment court refused to add post-judgment salary to an existing award, confirming review applications cannot introduce claims that were never originally tried.

What this practically means

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Executive summary

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By an application dated 13th June 2013, the claimant Peter Gikaria Wambugu sought review of the court's judgment of 7th February 2013, in which the respondent was ordered to reinstate him and to pay unpaid salary of Kshs.132,000 for 33 months (February 2010 to January 2013) plus Kshs.109,076 for rest days and public holidays, a total award of Kshs.257,960. He asked the court to include in the decree unpaid salary of Kshs.64,000 for the period February 2013 to May 2014, following his reinstatement and the dismissal of the respondent's application to set aside the reinstatement orders on 24th April 2014, and to expressly award him costs of the suit, the taxing master having declined taxation because the judgment had not expressly granted costs. The application was undefended. The court, per D.K. Njagi Marete J, found the application to be one for review but unsuitable. The claim for the Kshs.64,000 was not an issue on trial in the original suit but an offshoot of the judgment, triable only in another forum, and the claimant had not demonstrated whether he remained in the respondent's employment. On costs, the court held that costs had been considered at judgment and found untenable, the award of Kshs.257,960 being deemed adequate remedy, as any further award would cripple the respondent, a fledgling enterprise. The application was dismissed with no order as to costs on 7th November 2014.

Key legal issues

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01

Whether unpaid post-judgment salary can be added to a decree by way of review

Holding

No. The claim for Kshs.64,000/- accrued after the judgment and was not part of the matters on trial; it cannot be brought in through review and must be litigated elsewhere.

Reasoning

The court scrutinised the application and found it to be one for review. The sum claimed related to salary accruing between the date of judgment and the filing of the application, an offshoot of the judgment rather than an issue tried in the suit. The claimant also failed to demonstrate continued employment, which the court noted as a grey area.

p. 2
02

Whether the court should review its judgment to expressly award costs

Holding

No. Costs were considered at judgment and deliberately withheld as part of the court's balancing of the parties' interests.

Reasoning

The court had awarded relief amounting to Kshs.257,960 to the claimant, which it considered an adequate remedy. Withholding costs was a deliberate balancing act to avoid crippling the respondent, a fledgling enterprise. The court restated that balancing and declined to disturb it on review.

p. 2

Legal principles established

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  • A review application is not the proper forum for claims that were not on trial in the original suit; such claims must be pursued in another forum

Court orders

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  1. 1.The application for review is dismissed
  2. 2.No order as to costs
Jurisdiction invoked
Review jurisdiction of the Industrial Court over its own judgment (inherent powers to review)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Peter Gikaria Wambugu v Muhotetu Farmers Co-operative Society [2014] KEELRC 139 (KLR)", Case Analysis (2014). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/139/eng@2014-11-07

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.