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ELRCDismissedELRC suit (application dated 7 March 2018) - not stated in judgment· [2018] KEELRC 964 (KLR)

Rachel Asiko Angatia & 3 others v Heritage Insurance Company Limited [2018] KEELRC 964 (KLR)

Employment and Labour Relations Court
12 October 2018
3,467 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employment court refused to strike out a redundancy case, ruling that even Court of Appeal decisions can be ignored if they overlooked the law.

What this practically means

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Executive summary

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The respondent employer, Heritage Insurance Company Limited, moved to strike out the claimants' suit arising from a 30.4.2015 redundancy, arguing the dispute was identical to ELRC No. 781 of 2015 (Christopher Onyango & 23 others v Heritage Insurance), whose trial judgment in favour of employees was set aside on appeal in Civil Appeal No. 114 of 2016. The respondent submitted the suit was frivolous, res judicata and barred by the doctrine of stare decisis, and sought dismissal with costs. The claimants, through their advocate Mr. Kevin Kwaya, conceded the similarity of the disputes but contended the Court of Appeal decision was per incuriam: it failed to interrogate the mandatory redundancy notification procedure under section 40(1)(a) and (b) of the Employment Act, ignored the court's own precedents (Thomas De La Rue, Kenya Airways, African Nazarene University) and shifted the burden of proof contrary to sections 40 and 43. In a ruling delivered on 12 October 2018, Onesmus N. Makau J held that stare decisis is not absolute and that a court may depart from a binding decision given without consideration of a statute or binding authority. Finding that the Court of Appeal in Civil Appeal No. 114 of 2016 ignored its previous redundancy-notification authorities and sections 26 and 40 of the Employment Act, the court declared the decision per incuriam and not binding. Consequently the suit was not res judicata and the fairness of the redundancy remained open for trial. The notice of motion dated 7 March 2018 was dismissed with costs to the claimants.

Key legal issues

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01

Whether the court is bound by the Court of Appeal decision in Civil Appeal No. 114 of 2016 under stare decisis

Holding

The court declined to follow the decision, finding it was made per incuriam because it ignored prior Court of Appeal authorities on section 40 redundancy notification and the mandatory provisions of sections 26 and 40 of the Employment Act

Reasoning

The court reviewed Black's Law Dictionary and Ernst & Young v Capital Markets Authority, holding that a court may depart from a binding decision for strong reason, such as where the prior decision was given without consideration of a statute or binding authority. On perusal, Civil Appeal No. 114 of 2016 failed to consider the mandatory one-month notice under section 40(1)(a) and (b) and section 26 basic minimums, relying only on the 15-day notice in the employer's Staff Handbook. It was therefore per incuriam and not binding.

p. 4
02

Whether the claimants' suit is res judicata vis-a-vis ELRC No. 781 of 2015 and Civil Appeal No. 114 of 2016

Holding

The suit is not res judicata because the earlier Court of Appeal decision was per incuriam and not binding, leaving the fairness of the redundancy open for determination

Reasoning

Having found the decision in Civil Appeal No. 114 of 2016 per incuriam, the court reasoned that a non-binding decision cannot found res judicata. The legality and fairness of the 30.4.2015 redundancy therefore remains open for determination with due regard to section 40 of the Employment Act and the previous decisions on mandatory redundancy notification.

p. 4

Legal principles established

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  • The doctrine of stare decisis is not absolute; a court may depart from an otherwise binding decision made per incuriam, i.e. in ignorance of a statute or binding authority it ought to have considered
  • Notification of redundancy to the employee (or trade union) and the area labour officer under section 40(1)(a) and (b) of the Employment Act is mandatory, and section 26 sets basic minimum terms that cannot be ousted by less favourable contract terms
  • A suit is not res judicata where the earlier decision relied on was made per incuriam and is not binding

Court orders

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  1. 1.Dismissal of the respondent's notice of motion dated 7th March 2018
  2. 2.Costs of the application to the claimants

Authorities

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Legislation

  • Employment Actsection 40(1)(a) and (b)
  • Employment Actsection 26
  • Employment Actsections 43 and 40 (burden of proof, as cited by claimants)
  • Civil Procedure Actsection 7
  • Constitution of KenyaArticles 2, 25, 48 and 50

Cases cited (12)

  • Christopher Onyango & 23 others v Heritage Insurance Company Limited
    ELRC No. 781 of 2015
  • Heritage Insurance Co. Ltd v Christopher Onyango & 23 others
    Civil Appeal No. 114 of 2016
  • African Nazarene University v David Muevu (Mutevu) & 103 others
    [2017]eKLR
  • Kenya Airways Limited v Aviation & Allied Workers Kenya & 3 others
    [2014]eKLR
  • Thomas De La Rue (K) Ltd v David Opondo Omutelema
    [2013]eKLR
  • Hezekiah Muchoki v Attorney General & Another
    [2017]eKLR
  • Justice Jean W. Gacheche & 5 others v Judges and Magistrates Vetting Board & 2 others
    [2015]eKLR
  • Jasbir Singh Rain & 3 others v Tarhochan Singh Rai Estate & 4 Others
    [2013]eKLR
  • R. v Nor Elc. Co.
    [53] McRuer C.J.H.C
  • Ernst & Young LLP v Capital Markets Authority & Another
    [2017]eKLR
  • Michael Waweru Ndegwa v Republic
    [2016]eKLR
  • Peter Machari Muhura v Teachers Service Commission
    [2015]eKLR
Jurisdiction invoked
Original employment and labour relations jurisdiction of the ELRC; the impugned redundancy falls under the Employment Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Rachel Asiko Angatia & 3 others v Heritage Insurance Company Limited [2018] KEELRC 964 (KLR)", Case Analysis (2018). ELRC suit (application dated 7 March 2018) - not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/964/eng@2018-10-12

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