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ELRCDismissedCause No. 256 of 2020· [2021] KEELRC 2082 (KLR)

Walter Edwin Ogara Odhiambo v SGS Kenya Limited [2021] KEELRC 2082 (KLR)

Employment and Labour Relations Court
19 February 2021
2,987 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Employment Court dismissed an employee's applications to stop his redundancy, confirming that Kenyan courts will only review rulings for obvious, undeniable errors.

What this practically means

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Executive summary

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This ruling of the Employment and Labour Relations Court at Nairobi (Maureen Onyango J) determined two interlocutory applications by the Claimant in an employment dispute with SGS Kenya Limited. The first, dated 29th October 2020, sought status quo orders, leave to amend the Memorandum of Claim, an injunction restraining implementation of a notice of intended redundancy dated 26th October 2020, and review of the Court's ruling of 16th October 2020 dismissing an earlier application as speculative. The second, dated 25th November 2020, sought suspension of a second redundancy notice issued that day and maintenance of the status quo ante. The applications were disposed of by written submissions. The Court framed two issues: whether each application was merited. On review, the Claimant relied on ground (b) of Rule 33 of the ELRC (Procedure) Rules 2016, alleging a mistake apparent on the face of the record because the ruling referred only to a draft redundancy notice. Applying Muyodi v ICDC and Chandrakhant Joshibhai Patel v R, the Court held the threshold was not met: the email and both notices had been before the court, the earlier status quo order operated as a stay, and the reissued notice was not a different notice. The leave to amend had already been granted on 30th November 2020, and the injunction and suspension prayers were overtaken by events, the Claimant's termination having already taken effect. Both applications failed and were dismissed, with no orders for costs. The parties were directed to fix the main claim for hearing on a priority basis.

Key legal issues

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01

Whether a mistake or error apparent on the face of the record justified review of the ruling of 16th October 2020

Holding

No error apparent on the face of the record was established; the application for review failed

Reasoning

The Court applied the test in Muyodi v ICDC that an error apparent on the face of the record must stare one in the face and admit no two opinions. It found the email relied upon was before the court and was considered in the ruling, and the status quo order amounted to a stay of any redundancy notices. The reissued draft notice was not a different notice.

p. 4
02

Whether the injunctive and status quo prayers survived, given the termination had already taken effect

Holding

The prayers were overtaken by events and failed

Reasoning

The Court held that prayers for status quo, injunction and suspension of redundancy notices were moot because the Claimant's termination had already been effected, and the leave to amend had already been granted on 30th November 2020 with corresponding leave to the Respondent to respond.

p. 4

Legal principles established

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  • An error apparent on the face of the record must be obvious and patent, not one established by long drawn reasoning or on which two opinions are possible
  • Re-issuing a draft redundancy notice in the same format after the employee declines to comment does not make it a different notice

Court orders

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  1. 1.The Claimant's Application dated 29th October, 2020 fails save for prayer No. 3 (leave to amend) that had already been granted
  2. 2.The Application dated 25th November, 2020 is dismissed
  3. 3.Parties to fix the main Claim for hearing and determination at the registry on a priority basis as directed by Nduma J
  4. 4.No orders for costs

Authorities

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Legislation

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

Cases cited (9)

  • Mose Nyambega Ondieki v Vice Chancellor, Maasai Mara University & 3 Others
    (2018) eKLR
  • Popat Investment Limited & Another v Barclays Bank of Kenya Limited
    (2009) eKLR
  • Mrao Limited v First American Bank of Kenya & 2 Others
    (2003) KLR 125
  • Moses C. Muhia Njoroge & 2 Others v Jane W. Lesaloi & 5 Others
    (2014) eKLR
  • Mwambeja Ranching Company Limited & Another v Kenya National Capital Corporation Limited (Kenya) & 6 Others
    (2015) eKLR
  • Kanorero River Farm Limited & 3 Others v National Bank of Kenya Limited
    (2002) 2 KLR 207
  • Muyodi v Industrial and Commercial Development Corporation & Another
    [2006] 1 EA 243
  • Nyamogo & Nyamogo -vs- Kogo
    (2001) EA 174
  • Chandrakhant Joshibhai Patel v R
    [2004] TLR, 218
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, "Walter Edwin Ogara Odhiambo v SGS Kenya Limited [2021] KEELRC 2082 (KLR)", Case Analysis (2021). Cause No. 256 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/2082/eng@2021-02-19

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