Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCDismissedCause No 506 of 2018· [2021] KEELRC 2246 (KLR)

Fredrick Wesonga Adieri v Kenya Revenue Authority [2021] KEELRC 2246 (KLR)

Employment and Labour Relations Court
29 January 2021
2,684 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

#

What this practically means

#

Executive summary

#
Following judgment delivered by Rika J on 29.06.2020 awarding the claimant a declaration of unfair termination, 10 months' salary compensation, 3 months' salary in lieu of notice (Kshs.2,353,000 total), a certificate of service and costs, the respondent applied by notice of motion dated 28.10.2020 for review. It sought a finding that the claimant had been paid Kshs.6,550,000 inclusive of the notice pay, that the termination had transmuted into a normal termination, and a declaration that the claimant committed perjury under section 20(7) of the Employment and Labour Relations Court Act. The application was supported by affidavits of Frankline Kiogora and Wilson Gaconi, who explained that payment documents had been misfiled. The claimant opposed, arguing the application was defective, an abuse of process given the notice of appeal on record, and an attempt to avoid the decree. The Court dismissed the application with costs on four grounds: (1) no new evidence was discovered with due diligence, as the payment documents were in the applicant's possession and its own witness knew of the itemised dues; (2) Rule 33 precludes review where an appeal has been preferred, and filing review while the notice of appeal stood on record was a gamble amounting to abuse of process; (3) computation-to-pay exhibits are not evidence of payment, and absent proof or admission of receipt there is no double payment; the award stands and internal surcharging remedies are available; and (4) criminal liability under section 20(7) requires trial before a Magistrate's Court with Article 50 safeguards and proof beyond reasonable doubt, so invoking the criminal remedy in a civil review was an abuse of process. The Court emphasised that review cannot be used to change the character of a suit after judgment.

Key legal issues

#
01

Discovery of new and important matter or evidence under Rule 33(1)(a)

Holding

The applicant failed to establish the discovery ground; the payment documents were in its possession and its witness (Frankline Kiogora Gitonga) knew of the itemised final dues, so due diligence fails.

Reasoning

The Human Resource and Finance Departments were involved throughout the termination process and the documents were in the applicant's possession. No reasonable explanation was given why the payment documents were not produced at the hearing, and exhibit FK8 showed the witness was aware of the itemised dues including pay in lieu of notice. The Rule 33(1)(a) threshold was therefore not met.

p. 3
02

Competence of review where a notice of appeal is on record

Holding

Rule 33 precludes review where an appeal has been preferred; filing the review while the notice of appeal stood on record was an abuse of process.

Reasoning

It was not disputed that a notice of appeal against the judgment was filed and on record. The Court held that lodging the review while reserving the appeal amounted to gambling on outcomes. As urged for the claimant, this was an abuse of Court process justifying dismissal on that ground alone.

p. 3
03

Alleged prior payment of the judgment sum and 'transmutation' of the termination

Holding

Computation-to-pay exhibits are not evidence of payment; absent proof or admission of receipt, no double payment is established and the award stands.

Reasoning

The applicant admitted the three months' notice pay in its memorandum of response and witness statement. While paying the claimant twice would be unjust enrichment, the material at the hearing showed entitlement and non-payment. The exhibits showed only a plan to pay. An employer discovering internal failure may surcharge its officers rather than overturn the judgment on review.

p. 3
04

Perjury declaration under section 20(7) ELRC Act

Holding

A review application cannot determine criminal liability; the offence is triable before a Magistrate's Court with Article 50 safeguards and beyond reasonable doubt.

Reasoning

A finding of criminal liability engages Article 50 rights of an accused person. Invoking the criminal remedy within an essentially civil review proceeding was an abuse of process. Any prosecution must follow the Criminal Procedure Code and Evidence Act with evidence tested to the criminal standard of proof beyond reasonable doubt.

p. 3

Legal principles established

#
  • Rule 33 review requires discovery of new and important matter or evidence which, after exercise of due diligence, was not within the applicant's knowledge or producible at the time of the decree
  • An application for review filed while a notice of appeal is on record is an abuse of Court process and liable to dismissal
  • A computation or plan to pay is not evidence of payment; without proof or admission of payment there is no ground to find double payment
  • Review cannot be used to change the character of the defence or pleadings after judgment
  • Criminal liability under section 20(7) of the ELRC Act must be tried before a Magistrate's Court with Article 50 safeguards and to the beyond-reasonable-doubt standard, not in a civil review

Court orders

#
  1. 1.The application by the notice of motion filed on 02.11.2020 and dated 28.10.2020 is dismissed
  2. 2.Costs to the claimant

Authorities

#

Legislation

  • Constitution of Kenya 2010Article 159
  • Constitution of Kenya 2010Article 50
  • Employment and Labour Relations Court ActSection 20(1)
  • Employment and Labour Relations Court ActSection 20(7)
  • Employment and Labour Relations Court (Procedure) Rules, 2016Rule 28
  • Employment and Labour Relations Court (Procedure) Rules, 2016Rule 33
  • Employment and Labour Relations ActNot specified
  • Criminal Procedure CodeNot specified
  • Evidence ActNot specified
Jurisdiction invoked
Article 159 of the Constitution; Section 20(1) of the Employment and Labour Relations Court Act; Rules 28 and 33 of the Employment and Labour Relations Court (Procedure) Rules, 2016

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Fredrick Wesonga Adieri v Kenya Revenue Authority [2021] KEELRC 2246 (KLR)", Case Analysis (2021). Cause No 506 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/2246/eng@2021-01-29

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