Fredrick Wesonga Adieri v Kenya Revenue Authority [2021] KEELRC 2246 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Discovery of new and important matter or evidence under Rule 33(1)(a)
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.
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.
Competence of review where a notice of appeal is on record
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.
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.
Alleged prior payment of the judgment sum and 'transmutation' of the termination
Computation-to-pay exhibits are not evidence of payment; absent proof or admission of receipt, no double payment is established and the award stands.
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.
Perjury declaration under section 20(7) ELRC Act
A review application cannot determine criminal liability; the offence is triable before a Magistrate's Court with Article 50 safeguards and beyond reasonable doubt.
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.
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.The application by the notice of motion filed on 02.11.2020 and dated 28.10.2020 is dismissed
- 2.Costs to the claimant
- 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.