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ELRCPartially AllowedApplication dated 3rd December, 2020 (in the claim in which judgment was delivered on 13th May, 2010)

Agnes Muthoni & 34 others v Kenya Medical Research Institute (Kemri); Union of National Research & Allied Institutes Staff of Kenya (Unrisk) (Interested Party) [2021] KEELRC 667 (KLR)

Employment and Labour Relations Court
14 October 2021
1,483 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

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After 12 years, 35 Mombasa workers won orders to return to their jobs, get back pay, and recover a Kshs.200,000 deposit.

What this practically means

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Executive summary

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The claimants, 35 former employees, applied by notice of motion dated 3rd December, 2020 seeking enforcement of the judgment of 13th May, 2010 which declared their terminations of 17th December, 2009 null and void and directed the unconditional reinstatement of all 35 grievants without loss of basic pay or seniority and their re-engagement in their former positions. They sought an order compelling the current Chief Executive Officer and Director, Dr. Yeri Israel Kombe, to re-engage them; payment of ongoing salaries and allowances; back pay from 17th June, 2015 and allowances from 17th December, 2010 totalling Kshs.2,814,679; and release of Kshs.200,000 deposited as security for stay pending appeal in 2010. The interested party supported the application; the respondent filed only written submissions. The court traced the litigation history: stays in the Court of Appeal (appeal struck out on 10th May, 2013), High Court Petition No.201 of 2010, ELRC Petition No.31 of 2013 (determined, with sums of Kshs.50,569,000 in basic salary ordered released) and Appeal No.220 of 2016, and found that no stay orders remained in force. The court held the judgment stood and was enforceable, but that allowances and emoluments were not part of the award and no appeal lay on that limb, so the claim for allowances as back pay failed. Allowing the application in part, the court ordered re-engagement without loss of status, reporting for deployment on 18th October, 2021, payment of basic wage from 17th June, 2015 within 30 days, release of the Kshs.200,000 security with accrued interest to the claimants' advocates, and costs of the application.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether there is any subsisting stay order preventing execution of the judgment/award of 13th May, 2010
  2. 2.Whether the claimants are entitled to reinstatement and re-engagement in terms of the award
  3. 3.Whether the claimants are entitled to back pay comprising basic pay from 17th June, 2015 and allowances from 17th December, 2010
  4. 4.Whether the sum of Kshs.200,000 deposited as security for stay pending appeal should be released to the claimants with accrued interest

Key legal issues

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01

Enforcement of an award where stay orders have lapsed

Holding

The judgment of 13th May, 2010 stands and is enforceable since no subsisting stay orders exist

Reasoning

The court traced the chronology of stay orders in the appeal, the High Court petition and ELRC Petition No.31 of 2013 and found that each had been struck out, withdrawn, determined, lapsed or spent. With nothing pending to stay execution, the claimants were entitled to the fruits of the award, namely unconditional reinstatement, re-engagement and basic pay without loss of seniority.

p. 2
02

Scope of entitlements under the award

Holding

Only reinstatement without loss of basic pay and re-engagement were part of the award; allowances and emoluments were not and cannot be enforced through the decree

Reasoning

The court re-examined the decree of 13th May, 2010 which declared the terminations null and void and directed unconditional reinstatement of the 35 grievants without loss of basic pay or seniority. It held that while basic pay was embedded in the award, allowances were outside it and no appeal was lodged on that limb, so the claim for allowances as back pay failed.

p. 3
03

Release of security deposited as a condition of stay

Holding

The Kshs.200,000 deposited pursuant to the stay order of 1st October, 2010, with accrued interest, falls due for release to the claimants' advocates since the appeal was struck out and stays have lapsed

Reasoning

The stay pending appeal was conditional on a deposit of Kshs.200,000 in a joint account. The Court of Appeal struck out the appeal on 10th May, 2013 and the related petition and appeal were finalised, so the purpose of the security was spent. The court ordered its release with accrued interest to the claimants' advocates.

p. 3

Legal principles established

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  • Where all stay orders have lapsed, been spent or withdrawn, a judgment stands and the judgment debtor is entitled to enjoy the fruits of the award

Court orders

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  1. 1.The respondent's current Chief Executive Officer and Director Dr. Yeri Israel Kombe is ordered to re-engage the claimants and allow them to resume their work duties at the respondent's premises without any loss of status as held on 17th December, 2009
  2. 2.The claimants shall report on duty before the Chief Executive Officer and Director on 18th October, 2021 at 8.30 AM for deployment
  3. 3.Salary (basic wage) due from 17th June, 2015 to date shall be tabulated and paid within 30 days from the date of the order
  4. 4.The sum of Kshs.200,000 together with all accrued interest deposited in Account No.01-6400001 held by Cooperative Bank Ltd pursuant to the order of 1st October, 2010 shall forthwith be released to the claimants' advocates
  5. 5.Costs of the application to the claimants

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Not expressly stated; the court enforced its own judgment/decree of 13th May, 2010 in an employment claim under its supervisory and execution powers

Relief refused

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Payment of allowances from 17th December, 2010 to date and unsecured back pay beyond basic pay

Payment of allowances and emoluments was not part of the award of 13th May, 2010 and there was no appeal on that limb

p. 3

Costs

Costs of the application to the claimants (order (e): 'costs of this application')

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

there are no stay orders stopping execution of the judgement. The judgement herein stands.
p. 2Enforceability of judgment where stays have lapsed
The pending petition High Court No.31 of 2013 is addressed with finality; Court of Appeal No.220 of 2013 is addressed with finality; and stay orders herein all lapsed and or spent, the award herein in the terms applied in the instant application is found with merit.
p. 3Finality of related proceedings and merit of the application
Accordingly, application dated 3rd December, 2020 is hereby allowed in the following terms;
p. 3Disposition
The claimants shall report on duty and before the Chief Executive Officer and Director on 18 th October, 2021 at 8.30 AM for deployment;
p. 3Final orders - reporting for deployment
salary (basic wage) due from 17th June, 2015 to date shall be tabulated and paid within 30 days from the date hereof;
p. 3Final orders - payment of basic wage

Issues in the judgment

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minor

The names of the parties and the case number of the underlying claim are not stated in the judgment excerpt; the parties are identified only through the affidavits and the decree

minor

The judgment refers to Court of Appeal No.220 of 2013 in one passage while the affidavit reference to the appeal struck out on 10th May, 2013 is Appeal No.15 of 2011, and Appeal No.220 of 2016 is also mentioned - the appeal numbers are inconsistent

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, "Agnes Muthoni & 34 others v Kenya Medical Research Institute (Kemri); Union of National Research & Allied Institutes Staff of Kenya (Unrisk) (Interested Party) [2021] KEELRC 667 (KLR)", Case Analysis (2021). Application dated 3rd December, 2020 (in the claim in which judgment was delivered on 13th May, 2010). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/667/eng@2021-10-14

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