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ELRCDismissedNotice of Motion dated 3rd May 2021 (Employment and Labour Relations Court cause, judgment in original suit delivered 7th December 2018 by Radido J)· [2021] KEELRC 951 (KLR)

Peter Ngari Kariuki v Kenya Railways Corporation [2021] KEELRC 951 (KLR)

Employment and Labour Relations Court
23 September 2021
NMNzioki wa Makau
4,076 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled a judge cannot reverse a fellow judge's decision; Kenya Railways must appeal, and the worker's execution against it proceeds.

What this practically means

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Executive summary

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Kenya Railways Corporation moved the court by notice of motion dated 3rd May 2021 seeking leave to enter appearance, stay of execution, release of motor vehicle KCT 983Y (attached by auctioneers in execution of a decree), and review or setting aside of the order of 8th/9th September 2020 substituting the Corporation for Rift Valley Railways (Kenya) Limited as judgment debtor. The decree arose from a judgment of 7th December 2018 by Radido J awarding the Claimant Kshs. 1,023,626/- plus taxed costs of Kshs. 181,788/- against Rift Valley Railways (Kenya) Limited. The Corporation argued it was a distinct legal entity that never assumed RVR's liabilities, that it was not heard before substitution, that the Claimant had failed to disclose material facts (relying on Bahadurali Ebrahim Shamji), and that Section 88 of the Kenya Railways Corporation Act barred attachment of its property without the Managing Director's written permission. The Claimant opposed, invoking res judicata, functus officio, the defectiveness issue on the advocate's affidavit, and the Corporation's removal of the attached vehicle from the auctioneer's yard. The matter was disposed of by submissions. Nzioki wa Makau J held that the motion, though framed as one for setting aside, was in substance a review of a decision of a co-ordinate judge, Radido J, which this court had no power to entertain; the grievance lay on appeal. The motion was accordingly dismissed with costs and execution allowed to proceed. No separate ruling was made on the cross-examination or affidavit issues.

Key legal issues

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01

Whether the court could review/set aside Radido J's substitution order

Holding

No; the application, though crafted as setting aside, was in substance a review of a decision of a co-ordinate judge and was untenable

Reasoning

The court found that the motion sought to overturn Radido J's order substituting Kenya Railways Corporation as judgment debtor. Since the applicant was before a judge of the same court and equal rank, the only avenue was an appeal. The court therefore dismissed the motion and allowed execution to proceed.

p. 5
02

Whether the affidavit sworn by an advocate (Allan Ngure Kirika) should be struck off and cross-examination permitted

Holding

Not determined, as the entire motion was dismissed

Reasoning

The Claimant relied on authority that not all affidavits sworn by advocates are defective where confined to facts within the deponent's own knowledge, and on Article 159(2)(d) against procedural technicalities. The court disposed of the whole motion on the review jurisdiction point without separately ruling on this issue.

p. 4

Legal principles established

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  • A court of co-ordinate jurisdiction cannot review or set aside the decision of another judge of the same court; such a challenge lies on appeal
  • Section 88 of the Kenya Railways Corporation Act prohibits execution or attachment against the Corporation's property without the Managing Director's prior written permission

Court orders

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  1. 1.The Notice of Motion dated 3rd May 2021 is dismissed with costs
  2. 2.Execution may proceed

Authorities

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Legislation

  • Constitution of Kenya 2010Articles 50, 159(2)(d)
  • Kenya Railways Corporation ActSection 88 (incl. 88(a), 88(b))
  • Civil Procedure ActSections 1A, 1B, 3A
  • Civil Procedure Rules, 2010Order 1 Rule 10(2), Order 19 Rules 3 & 9, Order 40 Rule 1, Order 45 Rule 1, Order 57; Section 7 (res judicata, cited as Civil Procedure Rules 2010 in judgment)
  • State Corporations Act (2012)not specified
  • Interpretations & General Provisions ActSections 20, 21, 22, 23
  • Advocates (Practice) Rules, 1966Rules 8 and 9

Cases cited (8)

  • Bahadurali Ebrahim Shamji v. Al Noor Jamal & 2 Others
    [1997] eKLR
  • William Koross v Hezekiah Kiiptoo Komen & 4 Otheres
    [2015] eKLR
  • Telcom Kenya Ltd v John Ochanda
    [2014] eKlR
  • Raila Odinga & 2 Others v Independent Electoral & Boundaries Commission & 3 Others
    [2013] eKLR
  • Dinesh Construction Company Limited v Kenya Sugar Research Foundation
    [2021] eKLR
  • International Community of Women Living with HIV Registered Trustees v N.G.O. Coordination Board & 2 Others
    [2019] eKLR
  • Kamlesh M.A. Patni v Nasir Ibrahim Ali & 2 others
    CA 354/2004
  • Factory Guards Limited v Factory Guards Limited
    [2014] eKLR
Jurisdiction invoked
Articles 50 & 159(2)(d) of the Constitution; Sections 1A, 1B, 3A of the Civil Procedure Act; Order 1 Rule 10(2), Order 40 Rule 1, Order 45 Rule 1 and Order 57 of the Civil Procedure Rules, 2010; Section 88 of the Kenya Railways Corporation Act

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, "Peter Ngari Kariuki v Kenya Railways Corporation [2021] KEELRC 951 (KLR)", Case Analysis (2021). Notice of Motion dated 3rd May 2021 (Employment and Labour Relations Court cause, judgment in original suit delivered 7th December 2018 by Radido J). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/951/eng@2021-09-23

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