Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCDismissedNot stated in extract (ELRC Mombasa, review application filed 11.06.2021)· [2021] KEELRC 515 (KLR)

Enos Ireri v David Tours & Car Hire Limited [2021] KEELRC 515 (KLR)

Employment and Labour Relations Court
5 November 2021
BOByram Ongaya
1,594 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

#

What this practically means

#

Executive summary

#
Following a judgment delivered in April 2021 in favour of the claimant in an unfair termination suit - awarding Kshs 289,845.00 (less PAYE), a certificate of service within 30 days, and costs of the suit - the respondent (the applicant in this application) filed a notice of motion on 11.06.2021 under sections 3, 12 and 20 of the Employment & Labour Relations Court Act, 2011 and rule 33(1)(d) of the ELRC (Procedure) Rules, 2016 seeking review of the costs order. It prayed that each party bear its own costs, or alternatively that the respondent bear only 31.03% of costs proportionate to the claimant's margin of success, citing the parties' 14-year relationship, the claimant's prior payment of costs during the proceedings, and the applicant's financial position ravaged by Covid-19. A notice of appeal had been filed but withdrawn to pave way for the application. The claimant opposed, contending the Court lacked jurisdiction, that no error apparent on the record existed, and that appeal was the proper remedy. The Court, through Byram Ongaya, Judge, found that under section 12(4) of the Act it enjoys a wide discretion on costs, but the applicant's financial circumstances and relationship matters were never pleaded, proved or submitted at the hearing and could not constitute fresh evidence on review. It followed Geoffrey Makana Asanyo (Radido J) on the wide ELRC discretion but held that in the absence of material, costs follow the event. The Court distinguished Grace Waithera Hungi v Riley Services Limited, held itself functus officio, and dismissed the application with costs on 5 November 2021.

Key legal issues

#
01

Discretion in awarding costs under section 12(4) ELRC Act

Holding

The ELRC has a wide discretion on costs, but where no material was placed before it, the principle that costs follow the event applies

Reasoning

Section 12(4) permits just orders on costs, and rule 29 directs guidance by the Act and the Advocates (Remuneration) Order. The applicant's financial hardship and relationship claims were never pleaded, proved or submitted at hearing, so could not inform the original costs order. In the absence of material, the just path was costs following the event, as the claimant substantially succeeded.

p. 2
02

Functus officio and review versus appeal

Holding

Having delivered judgment, the Court is functus officio and cannot rehear the costs point absent established review grounds

Reasoning

The Court found no error apparent on the record or other review ground. Distinguishing Grace Waithera Hungi v Riley Services Limited, where a counterclaim's outcome had been ignored in awarding full costs, this case had no counterclaim and the claimant did not solely succeed on a money remedy. The proper course for a dissatisfied party was appeal.

p. 2

Legal principles established

#
  • In the absence of material persuading the Court otherwise, costs follow the event and the successful party is entitled to costs
  • A party cannot seek to reopen an award of costs after judgment; matters not pleaded and proved cannot constitute fresh evidence on review
  • Where no grounds for review exist, the remedy is appeal; a trial court is functus officio and cannot rehear the case

Court orders

#
  1. 1.The application for review filed on 11.06.2021 is dismissed with costs
  2. 2.Costs of the application awarded to the claimant

Authorities

#

Legislation

  • Employment & Labour Relations Court Act, 2011sections 3(1)(2), 12(3)(i), (viii), 12(4), 16, 20(1)
  • Employment and Labour Relations Court (Procedure) Rules, 2016rules 33(1)(d), 29(1) and (2)
  • Advocates (Remuneration) Order
  • Civil Procedure Act

Cases cited (2)

  • Geoffrey Makana Asanyo –Versus- Nakuru Water & Sanitation Services Company Limited & 8 Others
    [2015]eKLR
  • Grace Waithera Hungi –Versus- Riley Services Limited
    [2016] eKLR
Jurisdiction invoked
Sections 3(1)(2), 12(3)(i), (viii), 12(4), 16, 20(1) of the Employment & Labour Relations Court Act, 2011 and rule 33(1)(d) of the Employment and Labour Relations Court (Procedure) Rules, 2016

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Enos Ireri v David Tours & Car Hire Limited [2021] KEELRC 515 (KLR)", Case Analysis (2021). Not stated in extract (ELRC Mombasa, review application filed 11.06.2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/515/eng@2021-11-05

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