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ELRCDismissed· [2021] KEELRC 1601 (KLR)

Samuel Bundi Mokora v Musa Chebiringet [2021] KEELRC 1601 (KLR)

Employment and Labour Relations Court
10 June 2021
1,877 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employment court threw out an attempt to reverse a labour award because the employer had his chance to respond to the report and did not take it.

What this practically means

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Executive summary

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This ruling of the Employment and Labour Relations Court by Hellen Wasilwa J determined an application dated 24th February 2021 by the respondent, Musa Chebiringet, seeking stay of execution of a decree issued on 27th October 2020 by Hon. M. Mbaru J adopting a labour officer's report/award as the court's judgment, review and setting aside of that decree, stay of taxation of the claimant's bill of costs, and referral of the matter back to the labour officer for a fresh tabulation of dues. The applicant argued that the labour officer's report was prepared without his input, that the basic salary used in the tabulation was unascertained as no payslips were produced, and that he was denied a hearing contrary to section 47 of the Employment Act. The claimant, Samuel Bundi Mokora, opposed the application as scandalous, vexatious and an abuse of process, contending that the applicant had been served with the application to adopt the report, appeared in court, and failed to file a response; he also cited inordinate unexplained delay of about four months and failure to satisfy the Rule 33 review conditions and Order 22 Rule 22(1) stay conditions. The court noted from the record that the respondent had been given time to review the labour officer's report and comment but failed to do so, and that the adoption ruling was in fact delivered on 30th October 2020. Holding that none of the Rule 33 conditions for review were established and that there was nothing to review, the court dismissed the application with costs to the respondents.

Key legal issues

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01

Whether there was a denial of the right to be heard in the adoption of the labour officer's report

Holding

No - the respondent had opportunity and time to review and comment on the report but failed to do so

Reasoning

The court record showed that on 13/10/2020 the claimant sought adoption of the labour officer's report and the respondent's counsel stated she had no objection though she had not looked at it. The court gave time to review the report with mention on 26/10/2020, and on that date counsel cited being busy and sick without seeking to respond. The court concluded the claim that there was no chance to comment was incorrect.

p. 3
02

Whether the conditions for review under Rule 33 of the ELRC (Procedure) Rules 2016 were met

Holding

No - no new and important matter, no error apparent on the face of the record, no clarification required, and no other sufficient reason established

Reasoning

The court set out the Rule 33 grounds and held that none was established by the applicant. The applicant had not demonstrated any mistake or error apparent on the face of the record in the ruling adopting the labour officer's tabulations, and the court found nothing amenable to review in the ruling.

p. 3
03

Whether the court could review its own ruling of 27th/30th October 2020

Holding

The application was dismissed; the ruling adopting the report stood

Reasoning

The court noted a discrepancy in dates - no ruling was delivered by Mbaru J on 27/10/2020; the ruling adopting the labour officer's tabulations was delivered on 30/10/2020. It treated the 30/10/2020 ruling as the one in contention but found nothing to review in it.

p. 2

Legal principles established

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  • For a review application under Rule 33 to succeed, the applicant must establish discovery of new and important matter, an error apparent on the face of the record, need for clarification, or other sufficient reason
  • A party who is given opportunity to respond to a report sought to be adopted but fails to do so cannot later claim denial of a hearing

Court orders

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  1. 1.The applicant's application dated 24th February 2021 is dismissed
  2. 2.Costs of the application awarded to the respondents/claimant

Authorities

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Legislation

  • Employment Actsection 47
  • Employment and Labour Relations Court (Procedure) Rules, 2016Rule 33
  • Civil Procedure RulesOrder 22, Rule 22(1)

Cases cited (5)

  • Rajput –versus- Barclays Bank of Kenya Limited & 3 others
    [2013] eKLR
  • Antoine Ndiaye –v- African Virtual University
    [2015] eKLR
  • Prilscot Company Limited –v- Monica Heho
    [2015] eKLR
  • Attorney General & Others –v- Boniface Byanyima
  • Nerta Gohil –versus- Fidelity Commercial Bank Limited
    Nairobi Civil Appeal No. 93 of 2013
Jurisdiction invoked
Employment and Labour Relations Court (Procedure) Rules, 2016, Rule 33

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, "Samuel Bundi Mokora v Musa Chebiringet [2021] KEELRC 1601 (KLR)", Case Analysis (2021). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1601/eng@2021-06-10

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