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ELRCDismissedCause No. 323 of 2017· [2022] KEELRC 858 (KLR)

Everlyne Atieno Awuor & 37 others v Migori County Government & another [2022] KEELRC 858 (KLR)

Employment and Labour Relations Court
9 February 2022
800 words in judgment
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The bottom line

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Migori County lost its bid to overturn a judgment for 38 employees because it waited 20 months and ignored court directions on service.

What this practically means

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Executive summary

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This ruling of the Employment and Labour Relations Court at Kisumu (Radido Stephen, J) determined a Motion dated 30 March 2021 by the Migori County Government and Migori County Public Service Board in an employment cause in which judgment had been entered for 38 Claimants on the basis of a conciliation agreement. The Respondents sought leave for the firm of Prof Tom Ojienda & Associates to come on record, a stay of execution of the judgment of 7 July 2019, and review, variation or setting aside of that judgment. They contended that the conciliation agreement was procured through misrepresentation by a person who had no legal capacity and had held himself out as their Legal Officer, and that the judgment was incapable of implementation due to legal, human resource and budgetary constraints. An advocate from the previous firm on record, Okongo, Wandago & Co. Advocates, deposed that the signatory had severally given the firm instructions on behalf of the County Government. The Court declined the Motion save for leave to the incoming firm. It found the review was brought over 20 months after judgment with no explanation, an inordinate delay; that Marvin Omondi, the person alleged to have signed without authority, was never served as directed; and that the Respondents filed no affidavits of service on the Claimants, denying them their right to be heard. The Motion was dismissed with costs in the cause.

Key legal issues

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01

Whether the review application was brought without delay

Holding

The review was refused because it was filed over 20 months after the judgment with no explanation for the delay

Reasoning

The judgment sought to be reviewed was delivered on 9 July 2019 and the Motion was filed on 30 March 2021, a period of over 20 months. The Respondents offered no explanation for this period. The Court held the delay was inordinate and treated this as a sufficient ground to decline the review despite the allegations of lack of capacity and misrepresentation regarding the conciliation agreement.

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02

Whether service obligations were complied with

Holding

The review was also refused because the Respondents failed to serve Marvin Omondi as directed and failed to file affidavits of service on the Claimants

Reasoning

The Court had directed service of the Motion on Marvin Omondi, the person alleged to have signed the conciliation agreement without authority, but no evidence of such service was produced. Further, despite being ordered to file affidavits of service showing the Claimants were served so they could exercise their right to be heard, the Respondents filed none. These failures independently justified dismissal of the Motion.

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03

Whether the judgment was incapable of implementation due to legal, human resource and budgetary constraints

Holding

No relief was granted on this ground; the Motion was dismissed

Reasoning

The Respondents argued the judgment could not be implemented owing to legal, human resource and budgetary constraints, but the Court found the Motion should be declined on the grounds of inordinate delay and non-compliance with service directions, leaving the judgment intact. The constraint argument did not persuade the Court to review or set aside the judgment.

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Legal principles established

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  • A party seeking review must explain any delay in bringing the application; inordinate and unexplained delay justifies refusal
  • A person alleged to have acted without authority in signing a settlement must be served with the application attacking that settlement

Court orders

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  1. 1.Leave granted to the firm of Prof Tom Ojienda & Associates to come on record for the Respondents
  2. 2.The Motion dated 30 March 2021 otherwise dismissed
  3. 3.Costs in the cause
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction (Employment and Labour Relations Court Act), Cause No. 323 of 2017

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, "Everlyne Atieno Awuor & 37 others v Migori County Government & another [2022] KEELRC 858 (KLR)", Case Analysis (2022). Cause No. 323 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/858/eng@2022-02-09

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