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ELRCDismissedCause No. 464 'B' of 2014· [2021] KEELRC 819 (KLR)

Bernard Ndungu Mbugua Nairobi Water and Sewerage Company Limited [2021] KEELRC 819 (KLR)

Employment and Labour Relations Court
8 October 2021
MOMaureen Onyango
1,402 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court ruled you cannot seek review of a decision while an appeal against it is still alive.

What this practically means

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Executive summary

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This is a ruling of the Employment and Labour Relations Court at Nairobi (Onyango J) on the Claimant's Notice of Motion dated 3rd November 2020 seeking review of the court's Ruling delivered on 18th September 2020 in a claim by Bernard Ndungu Mbugua against Nairobi Water and Sewerage Company Limited. The Claimant argued that the Ruling of 18th September 2020 failed to take into account the court's final Judgment of 12th July 2019 and its Orders of 7th November 2019 directing the parties to tabulate the decretal award, that no computation had been done as directed (partly because his former counsel, Mr. Michael Owuor, passed on), and that the sum of Kshs.310,343.75 paid by the Respondent was a mutual computation not sanctioned by the court. He sought review so that full and final settlement could be computed, with the sums already paid deducted. The Respondent acknowledged the payment and maintained the application was devoid of merit, the due amount having been settled. The court framed one issue: whether the application for review was merited. Relying on Section 16 of the Employment and Labour Relations Court Act and Rule 33 of the ELRC (Procedure) Rules 2016, the court noted that the Claimant had filed a Notice of Appeal dated 29th September 2020 against the very Ruling he sought to review, with no indication of withdrawal or abandonment. Since Rule 33(1) permits review only where no appeal has been preferred, the court declined to discuss the merits and dismissed the application with costs to the Respondent.

Key legal issues

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Whether the application for review of the Ruling of 18th September 2020 was merited

Holding

The application failed because the Applicant had filed a Notice of Appeal against the same Ruling and Rule 33(1) bars review where an appeal has been preferred and not withdrawn or abandoned.

Reasoning

The court has power to review its judgments and rulings under Section 16 of the ELRC Act and Rule 33 of the ELRC (Procedure) Rules 2016. However, Rule 33(1) confines review to decrees or orders from which no appeal has been preferred. The record showed a Notice of Appeal dated 29th September 2020 lodged on 30th September 2020 against the impugned Ruling, with no indication of withdrawal or abandonment. The court therefore declined to discuss the merits.

p. 3

Legal principles established

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  • An application for review under Rule 33(1) of the ELRC (Procedure) Rules 2016 may only be made where no appeal has been preferred against the decree or order sought to be reviewed.

Court orders

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  1. 1.The Application dated 3rd November, 2020 is hereby dismissed with costs to the Respondent.

Authorities

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Legislation

  • Employment and Labour Relations Court ActSection 16
  • Employment and Labour Relations Court (Procedure) Rules 2016Rule 33
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
Jurisdiction invoked
Section 16 of the Employment and Labour Relations Court Act and Rule 33 of the Employment and Labour Relations Court (Procedure) Rules 2016

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, "Bernard Ndungu Mbugua Nairobi Water and Sewerage Company Limited [2021] KEELRC 819 (KLR)", Case Analysis (2021). Cause No. 464 'B' of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/819/eng@2021-10-08

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