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ELRCDismissedCause No 1794 of 2015· [2021] KEELRC 504 (KLR)

John G. Thumbi v Kenya Airports Authority (Cause 1794 of 2015) [2021] KEELRC 504 (KLR)

Employment and Labour Relations Court
11 November 2021
LNLINNET NDOLO
860 words in judgment
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The bottom line

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What this practically means

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Executive summary

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This ruling by Linndoh J (delivered virtually at Nairobi on 11th November 2021) determined a notice of motion dated 23rd July 2021 by the Respondent, Kenya Airports Authority, seeking stay of execution of a judgment of Abuodha J delivered on 6th May 2020, which awarded the Claimant Kshs. 11,142,024 as twelve months' salary compensation for unfair termination plus terminal benefits, with taxed costs of Kshs. 737,393.97. The Respondent, having partially settled the decree, applied for a declaration that the decree was satisfied and that subsequent proclamation and attachment of its goods was illegal and capricious, contending it had paid the full decretal sum. The Claimant opposed, maintaining the judgment was expressly based on gross monthly salary inclusive of allowances, whereas the Respondent had paid based on basic pay and housing allowance, and that the terminal benefits were likewise gross-based; interest was also claimed. The court identified the point of departure as the salary factor used in tabulating the awards. It held that since the judgment expressly fixed the compensation at Kshs. 11,142,024 based on gross monthly salary, neither party could apply a different factor, and the Respondent, having neither appealed nor sought review, was bound by that factor; its re-tabulation was ill advised. On the Respondent's immunity claim under Section 21(1) of the Government Proceedings Act, the court accepted the Claimant's submission, supported by the Kenya Airports Authority Act and cited authorities, that the Respondent is a body corporate not within the Act. The application was dismissed with costs to the Claimant and the interim orders of 26th July 2021 were vacated.

Key legal issues

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01

The correct factor for tabulating the compensation and terminal benefits awards

Holding

The judgment expressly fixed the award at Kshs. 11,142,024 based on gross monthly salary inclusive of allowances; neither party could apply a different factor.

Reasoning

The court noted that the judgment of 6th May 2020 expressly stated the compensation as a gross monthly salary figure inclusive of allowances. Having supplied the monthly salary factor, it was not open to the parties to apply a different factor either on compensation or terminal benefits. The Respondent's unilateral recalculation based on basic pay was therefore invalid and precipitated the unlawful execution proceedings.

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02

Whether the Respondent is immune from execution under the Government Proceedings Act

Holding

No - the Respondent is a body corporate, not a government institution or department, so Section 21(1) of the Government Proceedings Act does not shield it.

Reasoning

The Respondent claimed immunity under Section 21(1) of the Government Proceedings Act. The Claimant countered, relying on Section 3(2) of the Kenya Airports Authority Act and decided authorities on state corporations, that the Respondent is an independent body corporate. The court accepted this position and found the immunity claim unavailing.

p. 2

Legal principles established

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  • Where a judgment expressly fixes the salary factor used in computing an award, the parties cannot substitute a different factor; a party who neither appeals nor seeks review is bound by the judgment.
  • The Kenya Airports Authority, being a body corporate, is not a government department or institution immune from execution under Section 21(1) of the Government Proceedings Act.

Court orders

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  1. 1.The Respondent's application dated 23rd July 2021 is dismissed
  2. 2.Costs of the application awarded to the Claimant
  3. 3.The interim orders granted on 26th July 2021 are vacated

Authorities

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Legislation

  • Government Proceedings ActSection 21(1)
  • Kenya Airports Authority ActSection 3(2)
  • Kenya Airports Authority ActSection 35 (referred to via comparison)
  • Kenya Roads ActSection 68 (referred to via comparison)

Cases cited (2)

  • Ikon Prints Media Company Limited v Kenya National Highways Authority & 2 others
    [2015] eKLR
  • Kenya National Highways Authority v Ahmednassir Maalim Abdullahi
    [2021] eKLR
Jurisdiction invoked
Original and incidental jurisdiction of the Employment and Labour Relations Court over execution of its decree (not expressly invoked in the judgment)

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, "John G. Thumbi v Kenya Airports Authority (Cause 1794 of 2015) [2021] KEELRC 504 (KLR)", Case Analysis (2021). Cause No 1794 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/504/eng@2021-11-11

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