Rufus Njuguna & 3 others v Attorney General & 2 others [2018] KEELRC 998 (KLR)
The bottom line
#Kenya's Employment Court reopened a 2017 judgment because pay slips were missing, awarding 27 former aviation workers 42 months of salary arrears plus interest and costs.
What this practically means
#Executive summary
#Key legal issues
#Whether the certified payslips of the 25 applicants constituted new and important matter discovered after the judgment
Yes - the certified copies of payslips were not before Ndolo J. and could not with due diligence have been produced earlier, the applicants having lost their payslips
The court noted the 25 applicants wrote to the Permanent Secretary, Ministry of Transport on 30.10.2017 for certified copies of their payslips which were certified on 1.11.2017, after the judgment of 27.10.2017. Coupled with the affidavit of the 16th Applicant explaining the loss of payslips due to the 'metamorphosis' undergone since termination, the court held the evidence was new and could not even with due diligence have been produced before judgment.
Whether omission of the 14th and 27th applicants, who had filed payslips, from the judgment was an error apparent on the face of the record
Yes - the court confirmed on perusal of the record that Joab Omondi Atudo and Derek Olukaka Okola filed affidavits and payslips but were omitted, and the Judge never considered and rejected their material on the merits
The respondent argued the judge had considered and rejected all material, making the application a back-door appeal. On perusal of the record the court confirmed the two applicants' filings were omitted and found no point where the judge considered and dismissed their claims on the merits, hence an error apparent on the face of the record was established.
Whether failure to include house allowance in computing the dues of Onyango and Kairu warranted review
No - that was an error of judgment, reviewable only on appeal
The court distinguished between a mistake or error apparent on the face of the record and an error of judgment. The judge had relied on the payslips presented to compute the sums; disagreement with that computation is a matter for appeal, not review under Rule 33.
The period for which salary arrears should be assessed on review
The award of Emukule J. was for salary arrears between 18.4.2002 and 7.11.2005, not up to 2014 as assessed by Ndolo J.; the 27 applicants were awarded arrears for 42 months
Reviewing the original judgment of Emukule J. dated 7.11.2005, the court took the view that the arrears awarded related to the period from the date of dismissal (18.4.2002) to the date of that judgment (7.11.2005), and tabulated arrears for each of the 27 applicants on that 42-month basis using their payslips.
Legal principles established
#- Review under Rule 33(1)(a) ELRCRs lies where new and important evidence which could not with due diligence have been produced before the decree is discovered, and under Rule 33(1)(b) where there is an error apparent on the face of the record
- An erroneous exercise of judicial discretion in computation of awards is an error of judgment curable only on appeal, not a mistake apparent on the face of the record justifying review
- Where the judge who passed the impugned judgment is no longer attached to the court station, another judge may entertain the review under Rule 33(2) ELRCRs
- Omission from a judgment of parties who had filed evidence on record constitutes an error apparent on the face of the record
Court orders
#- 1.The judgment of Ndolo J. dated 27.10.2017 is reviewed and varied by awarding the 27 applicants salary arrears for the 42-month period April 2002 to October 2005 as individually tabulated by the court (e.g. Peter Mwongela Ndwiga Kshs.754,782.00 through Derek Olukaka Kshs.937,818.00)
- 2.The award to carry interest from the date of the judgment
- 3.Costs of the application to the applicants
- 4.The award shall be subject to statutory deductions
- 5.The rest of the orders sought (house allowances for Onyango and Kairu, annual salary increments and other allowances/benefits) are declined
- Jurisdiction invoked
- Employment and Labour Relations Court Rules, Rule 33 (review); suit transferred to the ELRC as an employment dispute under the Constitution of 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Rufus Njuguna & 3 others v Attorney General & 2 others [2018] KEELRC 998 (KLR)", Case Analysis (2018). Notice of Motion dated 27.11.2017 (ELRC Cause; originating suit by originating summons formerly before Emukule J.). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/998/eng@2018-09-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.