Gladys Muthoni Mwangi & 20 others v Barclays Bank of Kenya Limited & another [2021] KEELRC 2243 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the court is functus officio
The court is not functus officio; the earlier dismissal was for prematurity, and the extraction of the Court of Appeal decree on 2nd July 2019 furnished the jurisdiction to determine the application substantively.
The court noted judicially that jurisdiction had been raised in the earlier application of 18th April 2018, dismissed on 5th October 2018 as premature because the Court of Appeal decree had not been extracted, with an express indication the application could be brought afresh. The decree was extracted and issued on 2nd July 2019, so the basis of jurisdiction now existed and the application was properly before the court.
Underpaid severance for Ed Chuchu, Rachel Gitau and Charity Kimathi
Severance for the three petitioners must be recomputed on gross salary including the Kshs.130,000 monthly car allowance, with amounts already paid recovered from the fresh computation.
The decree, undisturbed on appeal, awarded severance at one month's gross salary per completed year. The respondents tabulated severance on basic pay only, omitting the car allowance evidenced in the P9 Forms. The court accepted the petitioners' tabulations (Kshs.805,000 x 36; Kshs.660,000 x 23; Kshs.658,000 x 21) and directed recovery of severance already paid.
Bonus for 2016
The claim for bonus computation was declined for want of justification of the amounts and the bonus policy.
Although the decree included 'payable bonus for 2016', the applicants did not explain how the figures were arrived at or the applicable bonus policy. The burden lay on them to show the bonus was payable; the court therefore had no basis to award the sums claimed.
Auctioneer's fees
The respondents must pay the auctioneer's fees per the Auctioneers Act schedule because the proclamation occurred when no stay of execution was in place.
The proclamation by Nairobi Connections Auctioneers was lawful at the time it was effected, as no stay orders existed then. The subsequent stay did not validate non-payment, so the respondents bear the fees.
Interest and advocate-client costs computation
Interest was refused for lack of jurisdiction, and computation of instructions, getting up and party-and-party costs remitted conceptually to the Taxing Master.
Interest was not awarded in the original judgment and the court, per its earlier ruling of 5th October 2018, had no jurisdiction to grant it. Costs computation under Schedule 6 of the Advocates Remuneration Order is the Taxing Master's domain.
Legal principles established
#- A court is not functus officio where the earlier application was dismissed only for prematurity for want of an extracted decree, and the decree has since been extracted; jurisdiction revives to determine the application substantively.
- Where a decree awards severance at one month's gross salary, computation limited to basic pay is erroneous; gross salary includes contractual allowances such as car allowance.
- A party seeking payment of a 'payable bonus' must justify that the bonus is payable and how the claimed figures were computed.
- Where lawful proclamation of assets commenced before any stay of execution issued, the judgment debtor bears the auctioneer's fees.
Court orders
#- 1.Severance pay for Edward Chuchu, Rachel Gitau and Charity Kimathi be tabulated afresh using gross salary (basic pay plus car allowance of Kshs.130,000 per month), yielding Kshs.28,980,000 for Chuchu, Kshs.15,180,000 for Gitau and Kshs.13,818,000 for Kimathi, with severance already paid by the Respondents to be recovered from these amounts
- 2.The Respondents to pay the Auctioneer's fees of Nairobi Connections Auctioneers as per the Auctioneer's Fees Schedule in the Auctioneers Act, the proclamation having been lawful as there was no stay of execution at the time
- 3.No orders as to costs
- Jurisdiction invoked
- Articles 23 and 41 of the Constitution of Kenya, 2010; Section 13, Rule 3(2), (3), (4) and (5) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013; Section 32(2) of the Employment and Labour Relations Court (Procedure) Rules, 2016
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gladys Muthoni Mwangi & 20 others v Barclays Bank of Kenya Limited & another [2021] KEELRC 2243 (KLR)", Case Analysis (2021). Petition No. 25 of 2016 (Ruling No. 2). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/2243/eng@2021-01-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.