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ELRCDismissedNot stated in judgment· [2020] KEELRC 462 (KLR)

Bernard Ndungu Mbugua v Nairobi Water and Sewerage Company Limited [2020] KEELRC 462 (KLR)

Employment and Labour Relations Court
18 September 2020
MOMAUREEN ONYANGO
650 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 dismissed a former employee's applications seeking confirmation of an award that had already been computed and paid to his previous advocates.

What this practically means

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Executive summary

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This ruling by Maureen Onyango, Judge of the Employment and Labour Relations Court at Nairobi, determined the claimant's applications dated 9th March 2020 (amended 6th April 2020) and 4th May 2020, which sought certification as urgent and orders to confirm and/or endorse the computation of the award, and to make a final award, arising from a judgment delivered on 12th July 2019. In that judgment the court had reduced the claimant's summary dismissal to normal termination, noting he was about 58 years old with about 24 years of cumulative service to the respondent and its predecessor, the Nairobi City Council, and ordered payment of terminal dues in accordance with his terms of service. The respondent opposed the applications through the replying affidavit of Patrick Maina, its Legal Officer, who deponed that the award had been computed and the decretal sum paid to S. Ndungu and Company Advocates, the claimant's then counsel, by cheque dated 9th October 2019. The computation comprised unutilized leave/off days of Kshs 254,135.25 and three months' pay in lieu of notice (gross Kshs 443,348.25, less PAYE at 30% of Kshs 133,004.45), leaving Kshs 310,343.75 payable. The court found that the decretal sum had already been settled before the claimant's current counsel came on record, and that the applications were therefore overtaken by events. The applications were dismissed with no orders for costs. The ruling was delivered virtually at Nairobi on 18th September 2020 under the COVID-19 directives, with the court relying on Article 159(2)(d) and Article 48 of the Constitution, Section 1B of the Civil Procedure Act, and waiver of Order 21 Rule 1 of the Civil Procedure Rules.

Key legal issues

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Whether the court should confirm and endorse the computation of the award

Holding

The application was dismissed because the award had already been computed and paid to the claimant's former advocates by cheque dated 9th October 2019, so the applications were overtaken by events.

Reasoning

The respondent's Legal Officer, Patrick Maina, swore a replying affidavit showing the award was computed (unutilized leave, three months' pay in lieu of notice less PAYE) and paid by cheque to S. Ndungu and Company Advocates, the claimant's then counsel, with all correspondence attached. The court therefore found the claimant's current counsel came on record after the decretal sum was settled, leaving nothing to confirm.

p. 2

Legal principles established

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    Court orders

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    1. 1.Dismissal of the claimant's applications dated 9th March, 6th April and 20th April 2020
    2. 2.No orders as to costs ('the applications are dismissed with no orders for costs')

    Authorities

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    Legislation

    • Civil Procedure RulesOrder 21 Rule 1
    • Civil Procedure ActSection 1B
    • Constitution of KenyaArticle 159(2)(d)
    • Constitution of KenyaArticle 48
    Jurisdiction invoked
    Original employment jurisdiction of the Employment and Labour Relations Court; application for confirmation/endorsement of computation of an award in a matter decided by the same court on 12th July 2019

    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, "Bernard Ndungu Mbugua v Nairobi Water and Sewerage Company Limited [2020] KEELRC 462 (KLR)", Case Analysis (2020). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/462/eng@2020-09-18

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