Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCDismissedCause No 1583 of 2013· [2020] KEELRC 810 (KLR)

Koki Muia v Samsung Electronics East Africa Limited [2020] KEELRC 810 (KLR)

Employment and Labour Relations Court
26 June 2020
1,212 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

#

A Kenyan court refused to reduce an employee's refund obligation or allow instalments, stressing that review applications must be filed promptly and honestly.

What this practically means

#

Executive summary

#
The claimant (applicant) moved the Employment and Labour Relations Court by Notice of Motion dated 14.11.2019 under section 1A & 1B of the Civil Procedure Act and Orders 21, 22 and 45 of the Civil Procedure Rules, seeking review of the refund of the decretal sum payable to the respondent and leave to pay the refund of Kshs. 1,857,760.15 in equal monthly instalments of Kshs. 200,000. The background was that the court had entered judgment for the claimant, and stay of execution pending appeal was granted on condition that the claimant paid a deposit of Kshs. 4,705,843.75, which she received. The Court of Appeal reduced the award to Kshs. 2,225,066.60 plus interest. By a Notice of Motion dated 27.8.2018 the respondent sought assessment of the refund, and on 8.10.2018 the court fixed the refund at Kshs. 2,531,356.45 plus interest from 29.9.2017. The applicant sought review of that figure to Kshs. 1,857,760.15, arguing the earlier assessment was erroneous in light of the appellate judgment and a 12% interest computation. The respondent opposed, noting the claimant never challenged the assessment and her application for leave to appeal out of time against it was dismissed. The court found the review application, filed over a year after the impugned order, was made after undue delay and disclosed no error apparent on the face of the record; the correct remedy was appeal, not review. The request for instalment payments was refused because the claimant, having deponed under oath that she had the means to refund if the appeal succeeded, had repaid nothing since the appellate judgment of 29.9.2017. The application was dismissed with costs on 26 June 2020 (Makau J).

Key legal issues

#
01

Whether the sum refundable assessed on 8.10.2018 (Kshs. 2,531,356.45 plus interest) should be reviewed to Kshs. 1,857,760.15

Holding

No review; the assessment was consistent with the Court of Appeal judgment after statutory deductions and no error apparent on the face of the record was shown. The application was also filed after undue delay of over one year.

Reasoning

Under Rule 33 of the ELRC Procedure Rules, review requires grounds under the rule and application without inordinate delay. The impugned order was made on 8.10.2018 but the review application was filed on 14.11.2019, over a year later. The court had adopted the respondent's calculation after statutory deductions, which was never disputed. The proper remedy for an alleged wrong assessment was appeal, not review, and leave to appeal out of time had already been dismissed.

p. 2
02

Whether leave should be granted to repay the refundable sum by equal monthly instalments of Kshs. 200,000

Holding

Leave refused because the claimant had enjoyed the money for almost five years, had not repaid anything since 29.9.2017, and had deponed under oath that she had the means to refund the decretal sum.

Reasoning

The claimant had held the deposit since 2015 without repaying any part after the Court of Appeal reduced the award. During the stay application she had affirmed under oath her ability to refund if the appeal succeeded; failing to repay would render the appeal nugatory and suggest she lied under oath. Her claim of means as a woman with a thriving business defeated any request for instalment payments.

p. 2

Legal principles established

#
  • An application for review must be made without inordinate delay.
  • A party who considers a decision wrong must appeal rather than seek review; review is not a substitute for appeal.

Court orders

#
  1. 1.The claimant's Notice of Motion dated 14.11.2019 is dismissed with costs

Authorities

#

Legislation

  • Civil Procedure Actsection 1A & 1B
  • Civil Procedure RulesOrder 21 Rule 12(2)
  • Civil Procedure RulesOrder 22
  • Civil Procedure RulesOrder 45 Rule 1
  • ELRC Procedure RulesRule 33
Jurisdiction invoked
Review jurisdiction under Rule 33 of the ELRC Procedure Rules; application brought under section 1A & 1B of the Civil Procedure Act, Order 21 Rule 12(2), Order 22 and Order 45 Rule 1 of the Civil Procedure Rules

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Koki Muia v Samsung Electronics East Africa Limited [2020] KEELRC 810 (KLR)", Case Analysis (2020). Cause No 1583 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/810/eng@2020-06-26

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