Humphrey Nyaga Thomas And 25 others v Kenyatta University [2019] KEELRC 289 (KLR)
The bottom line
#The Employment Court refused to review its earlier order, ruling that unpaid salary claims must be decided at a full hearing, not through review applications.
What this practically means
#Executive summary
#Key legal issues
#Whether the Muster Roll amounted to discovery of new and important matter for review
No; no evidence was availed that the Muster Roll was not within the Applicants' reach at the time of filing, and it does not address the issues on which the earlier application was dismissed
Rule 33(a) requires new evidence that, after due diligence, could not be produced when the order was made. The Applicants failed to demonstrate the Muster Roll was locked or inaccessible, and its production would not address all the issues cited in the ruling of 20th May 2019 dismissing the earlier application. The court found the Applicants were seeking additional months not pleaded.
Whether the Applicants impermissibly expanded their claim on review
Yes; the Applicants sought payment for three additional months (October–December 2018) not pleaded in the Amended Notice of Motion, amounting to a fishing expedition
The Amended Notice of Motion dated 28th September 2018 sought salaries for July, August and September 2018 and was dismissed. A review cannot introduce a new cause of action. The Applicants' reliance on the word 'subsequent' in prayer 6 could not justify adding months never pleaded before the court.
Whether invoking Order 45 of the Civil Procedure Rules rather than Rule 33 of the ELRC (Procedure) Rules, 2016 was fatal
No; the court has power to review under Section 16 of the ELRC Act and Rule 33, and the mischaracterisation was a curable procedural technicality
The respondent argued the application was incompetent for invoking Order 45 CPR instead of Section 16 of the ELRC Act and Rule 33 of the ELRC Rules 2016. The court agreed it is clothed with review powers under those provisions but held that the wrong citation was a technicality not affecting validity, and proceeded to consider the application on its merits under Rule 33.
Legal principles established
#- Citing the wrong procedural provision (Order 45 CPR instead of Rule 33 ELRC Rules) is a procedural technicality that does not invalidate a review application
- A claim for unpaid salaries must be determined at the hearing of the petition on evidence from both sides, not on interlocutory review
Court orders
#- 1.The instant Application dated 11th June 2019 is dismissed with costs to the Respondent
- Jurisdiction invoked
- Section 16 of the Employment and Labour Relations Court Act and Rule 33 of the Employment and Labour Relations Court (Procedure) Rules, 2016
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Humphrey Nyaga Thomas And 25 others v Kenyatta University [2019] KEELRC 289 (KLR)", Case Analysis (2019). Petition (Amended Notice of Motion dated 28th September 2018; Notice of Motion dated 11th June 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/289/eng@2019-11-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.