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ELRCPartially AllowedCause No. 872 of 2013 (Ruling No. 2)· [2018] KEELRC 472 (KLR)

Shadrack Otuoma Khamla & 7 others v Aniket Enterprises Ltd [2018] KEELRC 472 (KLR)

Employment and Labour Relations Court of Kenya at Nairobi
13 December 2018
787 words in judgment
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The bottom line

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The court refused to reopen employment awards for two workers but gave all winning claimants their legal costs, showing review cannot substitute for appeal in Kenya.

What this practically means

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Executive summary

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This ruling of the Employment and Labour Relations Court at Nairobi (Radido Stephen, Judge) determined an application dated 28 September 2018 by the 2nd and 3rd Claimants, George Obilo Oyier and Henry Kunani Shemema, seeking review and/or variation of the judgment delivered on 18 May 2018 so as to include them in the computation of awards against Aniket Enterprises Ltd, with judgment entered for notice pay of Kshs 10,000 and compensation of Kshs 20,000 each, and for the order denying costs of the suit to be set aside. The Respondent opposed, arguing the application was incompetent, failed the Rule 33 threshold of the ELRC (Procedure) Rules, 2016, was res judicata, and that appeal was the proper avenue. The Court noted it had earlier denied the two Claimants relief because no pay or terminal records for them were produced at the hearing, and that their causes of action differed from the successful Claimants - they were deemed to have deserted work rather than being terminated on redundancy grounds - so it was incumbent on them to lead adequate evidence to prove their claims. Applying the Court of Appeal decision in Abasi Belinda v. Frederick Kangwamu, the Court held that an erroneous view of evidence or law is a ground of appeal, not review, and that the applicants could not re-open the litigation through the review jurisdiction. The application was dismissed with costs to the Respondent. However, on costs of the main Cause, the Court confirmed the applicants' narration that the submissions deadline fell on a public holiday, set aside the order denying costs, and awarded costs to the successful Claimants.

Key legal issues

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01

Whether the Court could review its judgment to award the 2nd and 3rd Claimants terminal benefits

Holding

No - the application was dismissed as it lacked merit; the applicants could not re-open the litigation through the review jurisdiction where the Court had already given reasons for rejecting their claims.

Reasoning

The Court had denied the 2nd and 3rd Claimants relief because no pay or terminal records for them were produced at the hearing. Their assertion that records were filed by the Respondent amounted to a disagreement with the Court's evidential findings, which is a matter for appeal, not review. Further, their causes of action differed: they were deemed to have deserted work, so they bore the burden of leading adequate evidence to prove their claims.

p. 2
02

Whether the order denying costs of the main Cause should be set aside

Holding

Yes - the Court confirmed the applicants' narration on the deadline for filing submissions falling on a public holiday was correct and set aside the order denying costs, awarding costs to the successful Claimants.

Reasoning

On the question of costs, the Court confirmed that the narration by the applicants was correct; costs should not have been denied on account of a deadline falling on a public holiday. The order denying costs was therefore set aside and costs awarded to the successful Claimants, even though the substantive review of the awards failed.

p. 2

Legal principles established

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  • An erroneous view of evidence or law is a ground of appeal, not a ground for review; review cannot be used to re-open litigation on points that should be pursued on appeal.

Court orders

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  1. 1.The application dated 28 September 2018 dismissed as regards the 2nd and 3rd Claimants, with costs to the Respondent
  2. 2.The order denying costs of the main Cause to the successful Claimants set aside and costs awarded to them

Authorities

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Legislation

  • Employment and Labour Relations Court (Procedure) Rules, 2016Rule 33

Cases cited (1)

  • Abasi Belinda v. Frederick Kangwamu and another
    (1963) E.A. 557
Jurisdiction invoked
Review jurisdiction under Rule 33 of the Employment and Labour Relations Court (Procedure) Rules, 2016

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, "Shadrack Otuoma Khamla & 7 others v Aniket Enterprises Ltd [2018] KEELRC 472 (KLR)", Case Analysis (2018). Cause No. 872 of 2013 (Ruling No. 2). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/472/eng@2018-12-13

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