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ELRCDismissedPetition No. 25 of 2016

Gladys Muthoni Mwangi and 20 others v Barclays Bank of Kenya Limited & another [2018] KEELRC 992 (KLR)

Employment and Labour Relations Court
5 October 2018
6,352 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~25 min to read original · ~4 min brief

The bottom line

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The court dismissed former Barclays employees' application as premature because they had not yet extracted the Court of Appeal's order before asking for their dues to be computed and paid.

What this practically means

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Executive summary

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The Petitioners, former employees of Barclays Bank of Kenya Limited, obtained a judgment in this Court on 30th June 2016 declaring their redundancy unlawful and unfair, awarding notice pay, severance, accrued leave, 2016 bonus, medical cover, certificates of service, 10 months' gross salary for unfair termination and Kshs.500,000 each for discrimination, and directing transfer of motor vehicles at book value. The Court of Appeal, in Appeals Nos. 296 and 301 of 2016, upheld most awards on 16th March 2018. The Petitioners then applied by notice dated 18th April 2018 for settlement of terms of the amended decree, computation and payment of their dues per their own schedule, transfer of the vehicles of the 3rd, 5th and 8th Petitioners at book value with paid-up insurance, and leave to execute before taxation. They complained of underpayment of severance, non-payment of bonus, overcharging on vehicle values, and tax deducted at a flat 30% rather than 2018 bands, and sought interest. The Respondents contended the court was functus officio, that payments had been made in two tranches, and that the court lacked jurisdiction over tax matters. The court held that an order or decree on the Court of Appeal judgment must first be extracted under Rules 33 and 34 of the Court of Appeal Rules before terms could be settled; book value meant value at possession and insurance was never ordered; agreed vehicle sums could not be varied absent a setting-aside application; tax and interest claims fell outside the decree; and although the court has jurisdiction over taxation of employment income, refund claims lie with the Kenya Revenue Authority. The application was dismissed as premature and without merit, with no orders as to costs, the Petitioners being at liberty to apply afresh after extracting the appellate order.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether this Honourable Court having delivered a final judgment on 30th June 2016 is now functus officio
  2. 2.Whether the Applicants/Petitioners are entitled to the prayers sought in the Application dated 18th April 2018
  3. 3.Whether the Court has jurisdiction to determine issues of taxation of income arising from employment

Key legal issues

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01

Functus officio and settlement of the amended decree

Holding

The application is premature: the Court of Appeal's decision must first be extracted as an order/decree under Rules 33 and 34 of the Court of Appeal Rules before this court can settle terms of the amended decree

Reasoning

The court reasoned that settling terms of the decree as revised by the Court of Appeal would require interpreting the appellate decision, which is not this court's responsibility under the Court of Appeal Rules. Every decision on an appeal must be embodied in an order, and the successful party must prepare a draft for approval. Only upon receipt of the extracted order/decree may the court settle terms together with the amended decree of the trial court.

p. 8
02

Computation of individual dues

Holding

Prayer for computation and payment per the Petitioners' schedule cannot be granted before extraction of the Court of Appeal order

Reasoning

The court held that computation of each petitioner's dues must be anchored on an extracted order from the Court of Appeal judgment, as that order would form the basis of the computation. Absent that order, granting the prayer would require the trial court to interpret the appellate judgment, which it has no jurisdiction to do. The prayer was therefore disallowed as premature.

p. 8
03

Transfer of motor vehicles at book value with insurance

Holding

Refused; book value is at the time of possession, insurance was never ordered, and the December 2016/January 2017 agreements on the vehicles cannot be varied absent an application to set them aside

Reasoning

The court found that the original judgment mentioned only transfer at book value, not insurance. Book value is assessed at the time the petitioners took possession of the vehicles, which they have continuously used. Further, specific sums were agreed in negotiations in December 2016/January 2017, which was not a subject of the appeal, and there is no application for setting aside those agreements, so the court cannot vary them.

p. 8
04

Jurisdiction over taxation of employment income

Holding

The court has jurisdiction over taxation of income arising from employment, but the refund claims should be pursued with the Kenya Revenue Authority

Reasoning

Rejecting the respondents' objection, the court held that Sections 19 and 49(2) of the Employment Act provide for statutory deductions including tax on employment income, conferring jurisdiction. However, the petitioners' claims for refund of tax already remitted to KRA and for application of 2018 tax bands should have been raised with KRA before the deductions were made. Having failed to do so, and the respondent having complied with the law, the petitioners can only follow up with KRA under the relevant regulations.

p. 8
05

Interest on the decretal sums

Holding

Interest was not part of the decree and can only be considered on an application for review

Reasoning

The court noted that the issue of interest was not a subject of its decree and could only be considered on an application for review. The respondents had also submitted that the claim for interest could not be brought once the matter was concluded and that the petitioners had the opportunity to seek interest in their petition but did not. The prayer was consequently refused.

p. 8

Legal principles established

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  • A court cannot settle terms of a decree revised on appeal until the appellate court's decision has been embodied in an extracted order or decree
  • The Employment and Labour Relations Court has jurisdiction to adjudicate on taxation of income arising from employment
  • Book value of a motor vehicle transferred as a benefit is the value at the time the employee took possession

Court orders

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  1. 1.The application dated 18th April 2018 is dismissed
  2. 2.There shall be no orders for costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Sections 19 and 49(2) of the Employment Act, 2007 (employment and labour relations jurisdiction); Court of Appeal Rules Rules 33 and 34 considered

Relief refused

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Settlement of terms of the Amended Decree as revised by the Court of Appeal judgment of 16th March 2018

An order or decree of the Court of Appeal must first be extracted before this court can settle terms; acting on an unextracted judgment would exceed the court's jurisdiction

p. 8

Computation, determination and payment of each Petitioner's dues per the schedule at page 89 of annexure RG1

Computation can only be done after extraction of an order from the Court of Appeal judgment

p. 8

Transfer of motor vehicles at book value with fully paid up insurance

The judgment did not mention insurance; book value is at the time of taking possession, and agreements of December 2016/January 2017 on the vehicles were not appealed and cannot be varied absent an application to set them aside

p. 8

Leave to execute via attachment before taxation

Prayer rendered redundant by the above findings

p. 8

Refund of tax deducted and taxation using 2018 income tax bands

Petitioners should have raised the issue with the Kenya Revenue Authority before deductions were made; they can only follow it up with KRA

p. 8

Interest at 12% (or 6% per annum) on the dues

Interest was not part of the decree and can only be considered on an application for review

p. 8

Costs

There shall be no orders for costs.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

From the foregoing, I find that the application is premature, has no merit and dismiss the same.
p. 8disposition - dismissal of the application
The dismissal of the application does not preclude the applicants from making another application at the appropriate time for similar orders after extracting an order/decree on the appeal decision. There shall be no orders for costs.
p. 8final orders - liberty to reapply and costs
To act on the unextracted judgment of the Court of Appeal would imply that this court would be taking on a responsibility that it has no jurisdiction to perform.
p. 8functus officio and prerequisite of extracted appellate order
Sections 19 and 49(2) specifically provide for statutory deductions, which include tax on employment income. To that extent, this court has jurisdiction to adjudicate on taxation of income arising from employment.
p. 8jurisdiction over taxation of employment income
The issue of taxation and interest were also not subject of the decree of this court and can only be considered on an application for review.
p. 8taxation and interest claims

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, "Gladys Muthoni Mwangi and 20 others v Barclays Bank of Kenya Limited & another [2018] KEELRC 992 (KLR)", Case Analysis (2018). Petition No. 25 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/992/eng@2018-10-05

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