Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCDismissedPetition (Amended Notice of Motion dated 28th September 2018; Notice of Motion dated 11th June 2019)· [2019] KEELRC 289 (KLR)

Humphrey Nyaga Thomas And 25 others v Kenyatta University [2019] KEELRC 289 (KLR)

Employment and Labour Relations Court
22 November 2019
1,502 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

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

#
The Petitioners/Applicants moved the Employment and Labour Relations Court by Notice of Motion dated 11th June 2019 under Order 45 Rules 1, 2 and 3 and Order 51 Rule 1 of the Civil Procedure Rules, 2010, seeking review of the Court's order of 10th June 2019 so that the Respondent would pay their salaries for July to December 2018. They claimed the Muster Roll for that period, said to have been locked by the Respondent, only became available on 23rd May 2019 after the Court had ruled on their earlier Amended Notice of Motion dated 28th September 2018, which had sought payment for July to September 2018. The Respondent opposed, arguing the application was defective under Order 45, should have been brought under Section 16 of the ELRC Act and Rule 33 of the ELRC (Procedure) Rules 2016, was filed after unreasonable delay, sought a new cause of action, and that the Muster Roll could not prove unpaid salaries, an issue reserved for the hearing of the main Petition. The Court held it has review powers under Section 16 and Rule 33, and that the wrong procedural citation was a technicality not affecting validity. It nonetheless found no merit in the application: there was no evidence the Muster Roll was inaccessible when the earlier application was filed; the Applicants were on a fishing expedition by claiming three additional months never pleaded; and the claim for unpaid salaries could only be determined at the hearing of the Petition on evidence from both sides. The application was dismissed with costs to the Respondent.

Key legal issues

#
01

Whether the Muster Roll amounted to discovery of new and important matter for review

Holding

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

Reasoning

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.

p. 3
02

Whether the Applicants impermissibly expanded their claim on review

Holding

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

Reasoning

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.

p. 3
03

Whether invoking Order 45 of the Civil Procedure Rules rather than Rule 33 of the ELRC (Procedure) Rules, 2016 was fatal

Holding

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

Reasoning

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.

p. 2

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. 1.The instant Application dated 11th June 2019 is dismissed with costs to the Respondent

Authorities

#

Legislation

  • Civil Procedure Rules, 2010Order 45 Rules 1, 1(b), 2 and 3
  • Civil Procedure Rules, 2010Order 51 Rule 1
  • Employment and Labour Relations Court ActSection 16
  • Employment and Labour Relations Court (Procedure) Rules, 2016Rule 33

Cases cited (1)

  • Khalif Sheikh Adan Vs Attorney General
    (2019) eKLR
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.