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ELRCDismissedNot stated in judgment· [2022] KEELRC 1462 (KLR)

Republic v Samson Mwathethe, Chief Defence Forces, Department of Defence & another; Kazungu (Exparte) (Judicial Review Application 21 of 2020) [2022] KEELRC 1462 (KLR)

Employment and Labour Relations Court
17 June 2022
2,257 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan police officer's bid to revive a contempt claim failed because he could not show new evidence or errors justifying review of an earlier ruling.

What this practically means

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Executive summary

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This is a ruling of the Employment and Labour Relations Court at Nairobi delivered by Maureen Onyango, J on 17th June 2022. The Applicant, Sergeant Samson Kazungu, moved the Court by notice of motion dated 12th March 2020 seeking review, stay and/or setting aside of the Court's ruling of 7th November 2019, which had dismissed his earlier contempt application, and a finding that the 1st and 2nd Respondents were in contempt of the Court's reinstatement orders, with orders for reinstatement and payment of monthly salaries for the entire period. The Respondents did not file a response but submitted that they had fully complied with the reinstatement orders by reinstating the Applicant and later discharging him with full benefits, that the contempt claim was res judicata and required proof beyond reasonable doubt, and that the application was an abuse of court process. The Court reviewed the documents relied on, including a letter dated 28th August 2017 cancelling the dismissal instructions and a discharge on completion of Colour Service, and found that by the time the dismissal was cancelled the Applicant was already overdue for discharge; compliance was achieved by paying his salary from the date of dismissal to the date of discharge. The Court held that no grounds for review under rule 33 were demonstrated, that the contempt prayer was res judicata, and that the application was an abuse of court process. The application dated 12th March 2020 was dismissed with costs.

Key legal issues

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01

Whether grounds for review were established

Holding

The Applicant failed to demonstrate any of the rule 33 grounds for review

Reasoning

Rule 33 permits review on discovery of new and important matter, mistake or error apparent on the face of the record, need for clarification, or other sufficient reason. The Applicant did not state the grounds for review, and none of the grounds were pleaded or demonstrated. The attached documents showed the dismissal was cancelled and salary paid to the date of discharge, which the court held amounted to compliance with the reinstatement order.

p. 5
02

Whether the contempt claim is res judicata

Holding

Yes, the contempt prayer was already adjudicated in the ruling of 7th November 2019

Reasoning

The Applicant had previously filed a contempt application which was dismissed by the ruling of 7th November 2019. Seeking the same contempt finding again, coupled with review of that very ruling, would reopen a matter already decided. The doctrine of res judicata bars multiplicity of suits and guarantees finality of litigation.

p. 5
03

Whether the Respondents complied with the reinstatement order

Holding

Yes, compliance was achieved by payment of salary from the date of dismissal to the date of discharge

Reasoning

The letter of 28th August 2017 cancelled the dismissal instructions entirely pursuant to the successful appeal at the Labour Court. By then the Applicant had already reached the age of discharge under his terms of service, so he could not be physically reinstated. The order affected only the dismissal, not the terms of service; payment of backdated salary constituted full compliance.

p. 5
04

Whether the application is an abuse of court process

Holding

Yes, the court found the application to be an abuse of process

Reasoning

The Applicant either misunderstood the reasons in the ruling of 7th November 2019 or was abusing the court's process by re-litigating a settled matter. A court has inherent powers to terminate proceedings amounting to an abuse of its process.

p. 5

Legal principles established

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  • Review requires demonstration of discovery of new matter, error apparent on the face of the record, need for clarification, or other sufficient reason under rule 33 of the ELRC (Procedure) Rules
  • Contempt proceedings are criminal in nature and the standard of proof is beyond reasonable doubt
  • Where a dismissal is cancelled after an employee has already passed the age of discharge under his terms of service, compliance with a reinstatement order is effected by payment of salary from dismissal to the date of discharge, not physical reinstatement

Court orders

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  1. 1.The application dated 12th March 2020 is dismissed with costs

Authorities

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Legislation

  • Employment and Labour Relations Court (Procedure) RulesRule 33
  • Civil Procedure RulesOrder 21 Rule 1
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Civil Procedure Act (Chapter 21 of the Laws of Kenya)Section 1B

Cases cited (6)

  • Bramblevale Ltd (1970) CH 128
    (1970) CH 128
  • Kenya Commercial Bank Limited v Muiri Coffee Estate Limited & another [2016] eKLR
    [2016] eKLR
  • Accredo AG & 3 others v Steffano Uccelli & another [2019] eKLR
    [2019] eKLR
  • Independent Electoral & Boundaries Commission v Maina Kiai & 5 others [2017] eKLR
    [2017] eKLR
  • John Florence Maritime Services Limited & another v Cabinet Secretary for Transport and Infrastructure & 3 others [2015] eKLR
    [2015] eKLR
  • Stephen Somek Takwenyi & Another vs. David Mbuthia Githare & 2 others Nairobi (Milimani) HCCC No. 363 of 2009
    Nairobi (Milimani) HCCC No. 363 of 2009
Jurisdiction invoked
Rule 33 of the Employment and Labour Relations Court (Procedure) Rules and the Court's inherent powers

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, "Republic v Samson Mwathethe, Chief Defence Forces, Department of Defence & another; Kazungu (Exparte) (Judicial Review Application 21 of 2020) [2022] KEELRC 1462 (KLR)", Case Analysis (2022). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1462/eng@2022-06-17

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