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ELRCDismissedNotice of Motion dated 2nd February 2017 (in Memorandum of Claim dated 21st December 2016)· [2017] KEELRC 1672 (KLR)

Joe K. Kamaria v County Government of Embu & 2 others [2017] KEELRC 1672 (KLR)

Employment and Labour Relations Court of Kenya
10 March 2017
LNLinnet Ndolo
1,568 words in judgment
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The bottom line

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Kenya's Employment Court refused to review its reinstatement orders against Embu County, confirming that disagreements with a judge's reasoning must go to appeal, not review.

What this practically means

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Executive summary

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The Claimant, an employee of the County Government of Embu, filed a Memorandum of Claim and Notice of Motion in December 2016 at the ELRC at Nyeri; the file was transferred to Nairobi for the Vacation Duty Judge, who on 18th January 2017 granted orders for unconditional reinstatement or re-engagement and payment of accrued salaries. The Court subsequently issued notices to show cause and Warrants of Arrest against the Respondents. The Respondents then filed a Notice of Motion dated 2nd February 2017 seeking stay, review and setting aside of those orders, cancellation of the Warrants of Arrest, and striking out of the claim or alternatively of the claim against the 2nd and 3rd Respondents, arguing that the claim was premature for want of referral to the Public Service Commission under Section 77 of the County Governments Act, that the Claimant had absconded and obtained orders by non-disclosure, that the salary order contravened Section 19(c) of the Employment Act, and that there was no privity with the 2nd and 3rd Respondents. Ndolo J held that the court was not sitting on appeal and could only determine whether a case for review under Section 16 of the ELRC Court Act and Rule 33 was made out. Applying Mativo J's holding in Michael Muriuki Ngubuini, the court held that misapprehension of law or facts is corrected on appeal, not review. The application was dismissed with costs, and the file was ordered transferred back to Nyeri for mention on 21st March 2017.

Key legal issues

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01

Scope of review under Section 16 ELRC Act and Rule 33

Holding

Review is limited to discovery of new matter, error apparent on the face of the record, breach of written law, need for clarification or other sufficient reason; misapprehension of law or facts is not a review ground

Reasoning

The court reproduced Rule 33(1) and held that arguments about prematurity, non-disclosure, Section 19(c) of the Employment Act and misjoinder amount, at most, to allegations that the Trial Judge misapprehended law or facts, which is appealable error, not reviewable error.

p. 3
02

Referral to Public Service Commission under Section 77 County Governments Act

Holding

Though the argument was persuasive, courts have taken conflicting positions; the point, if an error, is only correctable on appeal

Reasoning

The court noted Mumbi Ngugi J's decision requiring referral to the PSC, but also noted contrary authority in Shilenje v County Government of Kakamega. It declined to resolve the conflict, holding the issue was one for appeal rather than review.

p. 3

Legal principles established

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  • A court's misapprehension of law or facts is not a ground for review; the remedy is appeal
  • Errors on account of the referral requirement in Section 77 of the County Governments Act can only be corrected on appeal, not by review

Court orders

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  1. 1.The Respondents' application dated 2nd February 2017 is dismissed with costs to the Claimant
  2. 2.The court file be transferred back to the Employment and Labour Relations Court in Nyeri
  3. 3.The matter to be mentioned before the Judge in Nyeri on 21st March 2017 for further directions

Authorities

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Legislation

  • Employment and Labour Relations Court ActSection 16
  • Employment and Labour Relations Court Procedure RulesRule 33(1)
  • County Governments Act No. 17 of 2012Section 77; Section 6(1)
  • Employment Act, 2007Section 19(c)

Cases cited (3)

  • James Tinai Murete & others v County Government of Kajaido & 22 others
    [2015] eKLR
  • Andrew Shiroko Shilenje v County Government of Kakamega and another
    Kakamega High Court Petition No 22 of 2014
  • Michael Muriuki Ngubuini v East African Building Society Limited
    [2015] eKLR
Jurisdiction invoked
Section 16 of the Employment and Labour Relations Court Act and Rule 33 of the Procedure Rules (power of the Court to review its own decisions)

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, "Joe K. Kamaria v County Government of Embu & 2 others [2017] KEELRC 1672 (KLR)", Case Analysis (2017). Notice of Motion dated 2nd February 2017 (in Memorandum of Claim dated 21st December 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2017/1672/eng@2017-03-10

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