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ELRCPartially AllowedNot stated in the judgment (Notice of Motion dated 24th January 2014 and application dated 12th February 2014)· [2014] KEELRC 1149 (KLR)

Julius Kipketer Rugut v Elgon View College Limited [2014] KEELRC 1149 (KLR)

Industrial Court of Kenya (now Employment and Labour Relations Court)
4 June 2014
MBMbaru
1,062 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The claimant, formerly employed as a lecturer by the respondent college, brought a Notice of Motion dated 24th January 2014 under Order 51 rule 1 of the Civil Procedure Rules and sections 3A and 5 of the Civil Procedure Act seeking interim orders that his position not be replaced, that he be reinstated pending hearing of his claim, and that unpaid salaries from August 2013 to January 2014, leave allowance and other benefits be paid. He alleged unfair termination in July 2013 without notice or hearing. The respondent, through the affidavit of Japheth Morara Anassi, denied the claim, asserting that the claimant left its employment on 30th January 2012 to join Mosop Institute of Technology, a separate entity, and that it had no position to which he could be reinstated. The respondent also filed an application dated 12th February 2014 under Rule 32 of the Industrial Court Rules seeking review of orders made on 30th/31st January 2014 requiring it to pay the claimant's salaries, contending it was condemned unheard as the hearing dates were not brought to its attention. The court held that the conflict between the claimant's appointment documents (JKR2 and JKR3) raised questions of the parties' intentions that could only be resolved at a full hearing, and that fairness required the respondent be given a chance to be heard. It set aside the orders of 30th January 2014, directed the parties to take a hearing date for the main suit, and ordered each party to bear their own costs. Judgment delivered on 4th June 2014 by Mbaru J at Nairobi.

Key legal issues

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01

Whether the respondent's review application under Rule 32 of the Industrial Court Rules should succeed on the ground that it was condemned unheard

Holding

Yes - the ex parte orders of 30th January 2014 requiring payment of salaries were set aside to allow the respondent to be heard

Reasoning

The respondent argued it was notified of the 31st January 2014 hearing on the same day, with no adequate time to comply or respond. The court accepted that fairness requires each party be given a fair chance to be heard, and that the orders made without the respondent being properly heard were prejudicial. It set the orders aside and directed the parties to take a hearing date for the main suit.

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02

Whether the claimant was employed by the respondent or by Mosop Institute of Technology

Holding

This is a triable issue that cannot be determined on the interlocutory application

Reasoning

The claimant's appointment as Deputy Principal with Mosop Institute of Technology (JKR3, dated 30th January 2012) did not on its face link to the respondent's document on Faculty and Administrative Changes (JKR2) promoting the Dean of Students to Deputy Principal in charge of Kabarnet Campus. The court held that the parties' intentions and understandings of these documents require evidence at a full hearing, and it also noted the claimant's continued demand for August salary per his letter of 9th September 2013.

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Legal principles established

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  • Interlocutory applications should not decide contested questions that require viva voce evidence on the parties' intentions and understandings; such issues must await the full hearing
  • A party who was condemned unheard is entitled to have interim orders set aside so that it may be heard on its defence

Court orders

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  1. 1.Orders dated 30th January 2014 are hereby set aside
  2. 2.Parties to take a hearing date for the main course from the registry
  3. 3.Each party will bear their own costs

Authorities

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Legislation

  • Civil Procedure Actsection 3A
  • Civil Procedure Actsection 5
  • Civil Procedure RulesOrder 51 rule 1
  • Industrial Court RulesRule 32
Jurisdiction invoked
Order 51 rule 1 of the Civil Procedure Rules and sections 3A and 5 of the Civil Procedure Act (claimant's application); Rule 32 of the Industrial Court Rules (respondent's application for 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, "Julius Kipketer Rugut v Elgon View College Limited [2014] KEELRC 1149 (KLR)", Case Analysis (2014). Not stated in the judgment (Notice of Motion dated 24th January 2014 and application dated 12th February 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/1149/eng@2014-06-04

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