Titus Mutiso Mbindyo v Motor Boutique Limited [2020] KEELRC 1094 (KLR)
The bottom line
#A Kenyan employer's attempt to overturn an unfair termination award failed because it never properly pleaded its case the first time.
What this practically means
#Executive summary
#Key legal issues
#Whether the applicant established grounds for review under Rule 33(1)
No. The documents produced were available to the respondent all along, were not referred to in the defence, and do not qualify as new and important matter discovered after the decree; no error apparent on the face of the record was shown.
The court examined Rule 33(1) of the ELRC (Procedure) Rules 2016 and held that review on the basis of new evidence applies only where the matter was not within the applicant's knowledge or could not be produced with due diligence at the time of the decree. The respondent had the documents since the suit was filed in 2014, never filed a witness statement, and admitted the pleaded salary in its defence.
Whether the claimant's salary could be varied from the pleaded and admitted Kshs.24,982 to Kshs.15,182
No. The respondent admitted paragraph 3 of the claim which pleaded the salary, and is estopped from denying it.
The court reproduced paragraph 3 of the claim pleading a last salary of Kshs.24,982 and paragraph 3 of the defence admitting it. There was no plea denying the salary. Since parties are bound by their pleadings, the respondent could not, on review, seek to substitute a lower salary as the basis for recalculating notice pay and compensation.
Whether alleged payments of notice pay, gratuity and SACCO remittances should be deducted from the award
No. These matters were not pleaded in the defence as payments of notice, and no evidence was adduced of remittance to the SACCO.
The court noted that no gratuity was awarded in the judgment and no payment of notice was pleaded in the defence. The defence only alleged that part of the dues was remitted to an undisclosed SACCO for loan recovery, and the original judgment found there was no proof of the loan, the amount owed, or the remittance.
Where the respondent's remedy lies for its counsel's failures
The respondent's remedy, if any, is against its counsel who negligently handled the case, not against the claimant who bore no fault.
The court catalogued counsel's defaults: failure to draft a proper defence, failure to file witness statements and documents, failure to attend a hearing date fixed by consent, failure to prosecute the application to set aside ex parte proceedings, and basing submissions on unpleaded matters. The claimant did nothing wrong and should not bear the consequences.
Legal principles established
#- New evidence admissible on review must have been beyond the applicant's knowledge or incapable of production at the time of the decree; evidence that could have been filed with the defence does not qualify
- Parties are bound by their pleadings, and a party who admits a pleaded fact is estopped from denying it
Court orders
#- 1.The applicant's notice of motion dated 10th June 2019 seeking review of the judgment dated 27th May 2019 is dismissed
- 2.Costs of the application awarded to the claimant
- Jurisdiction invoked
- Section 16 of the Employment and Labour Relations Court Act and Rule 33(1) of the Employment and Labour Relations Court (Procedure) Rules, 2016
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Jacinta Pere & another v Lukas Kibengwa Okara t/a Kenagwa Enterprises & another [2021] KEELC 1853 (KLR)[2021] KEELC 1853 (KLR)20 Sept 2021
Cite this brief
#Cite this brief
Caselaw, "Titus Mutiso Mbindyo v Motor Boutique Limited [2020] KEELRC 1094 (KLR)", Case Analysis (2020). Cause No. 1528 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1094/eng@2020-05-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.