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ELRCOtherNot stated in judgment· [2023] KEELRC 285 (KLR)

Nduati v Teachers Service Commission (Cause 1137 of 2017) [2023] KEELRC 285 (KLR)

Employment and Labour Relations Court
8 February 2023
1,781 words in judgment
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The bottom line

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A Kenyan employment court refused to award costs even though the teacher won, because her own delayed documents caused the dispute.

What this practically means

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Executive summary

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This ELRC judgment at Nairobi, delivered virtually by Dr Jacob Gakeri J on 8 February 2023, resolves a dispute over costs only. The claimant, a teacher, had sued to restrain her retirement on the ground that she had not attained 60 years, relying on a birth certificate and national identity card showing a date of birth of February 24, 1960, whereas her 1982 application for registration of teachers recorded 1957. Interim orders restraining the retirement were discharged in August 2018, the claim was amended in November 2021 to claim various sums, and the respondent tabulated payments made for July 2017 to May 2018. After the respondent paid the sum of Kshs 485,767.00 identified as salary for six months, the claimant sought entry of judgment as claimed for extraction of the decree and costs; the respondent opposed, urging the matter should have been resolved out of court. The court held that costs are at its unfettered discretion under section 12(4) of the Employment and Labour Relations Court Act and Regulation 29(1) of the ELRC (Procedure) Rules, 2016, guided by the factors in Biashara Sacco v Kihagi, and that it is not bound by the principle that costs follow the event. Finding that the respondent acted reasonably on the documents the claimant herself supplied, that the claimant's indolence precipitated the action, and that the payment resolved the substratum of the claim, the court ordered that each party bear its own costs.

Key legal issues

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01

Whether costs should follow the event where the claim is resolved mid-litigation by payment

Holding

Costs are discretionary; despite the claimant's legitimate claim, the respondent's payment resolved the dispute and the claimant's conduct precipitated the litigation, so each party bears its own costs.

Reasoning

The court has unfettered discretion under section 12(4) ELRC Act and Rule 29(1) of the ELRC (Procedure) Rules, guided by the factors in Biashara Sacco. The respondent acted reasonably on the documents supplied by the claimant, which showed a 1957 date of birth, while the claimant withheld her ID and birth certificate showing 1960 until retirement arose. The payment addressed the substratum of the claim, making it unjust to condemn the respondent with costs.

p. 4

Legal principles established

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  • Costs are at the discretion of the court and the ELRC is not bound by the principle that costs follow the event.
  • In awarding costs the court considers the conduct of the parties, the subject of litigation, the circumstances leading to the proceedings, the events leading to their termination, the stage of termination, the parties' relationship and the need to promote reconciliation under Article 159(2)(c).

Court orders

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  1. 1.Each party to bear its own costs
  2. 2.It is so ordered

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 159(2)(c)
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Constitution of Kenya, 2010Article 48
  • Employment and Labour Relations Court Actsection 12(4)
  • Employment and Labour Relations Court (Procedure) Rules, 2016Regulation 29(1)
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B

Cases cited (3)

  • Party of Independent Candidate of Kenya v Mutula Kilonzo & 2 others
    HCEP No 6 of 2013
  • Biashara Sacco Society Ltd & 2 others v Dickson Miricho Kihagi
    (2016) eKLR
  • Hussein Janmohamed & Sons v Twentsche Overseas Trading Co Ltd
    (1967) EA 287
Jurisdiction invoked
Employment and Labour Relations Court Act, 2011, section 12

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, "Nduati v Teachers Service Commission (Cause 1137 of 2017) [2023] KEELRC 285 (KLR)", Case Analysis (2023). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/285/eng@2023-02-08

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