Mong’are v National Government Constituencies Development Fund Board (Cause 66 of 2018) [2023] KEELRC 301 (KLR)
The bottom line
#A Kenyan employment court cut Kshs.508,856.94 from an award because the employee had already been paid gratuity, even though the employer filed its evidence late.
What this practically means
#Executive summary
#Key legal issues
#Whether the discovery of new evidence ground under Rule 33(1)(a) was established
Not established - no explanation for non-production at trial
The Applicant produced payment vouchers showing the Claimant was paid gratuity of Kshs.694,822, which the Claimant's bare denial failed to displace. However, the Applicant gave no good explanation why that evidence was not adduced at the hearing, so the due-diligence threshold under Rule 33(1)(a) was not satisfied.
Whether a filed notice of appeal bars an application for review
No - a notice of appeal is merely an expression of intention to appeal, not an appeal
The court held that a notice of appeal is only the first procedural step and cannot stand alone; unless followed by a memorandum and record of appeal, no appeal is pending. In any event the notice of appeal had been withdrawn, so no appeal barred the review.
Whether review could nonetheless be granted for other sufficient reason
Yes - under Rule 33(1)(d), to prevent double payment and unjust enrichment
Although the Rule 33(1)(a) threshold failed, the court found sufficient reason under Rule 33(1)(d): allowing the gratuity award to stand would amount to double payment and unjust enrichment, no execution had commenced, and no prejudice would be occasioned. The judgment was reviewed to discount Kshs.508,856.94 from the award.
Whether the delay of about five months in filing the application was inordinate
No - the delay, though unexplained, was neither inordinate nor prolonged
Judgment was delivered on 12th May 2022 and the application filed in October 2022. The court accepted that a request for confirmation of payment to the Claimant's counsel contributed to the delay and held that, in the circumstances and interests of justice, the roughly five-month delay was not inordinate.
Legal principles established
#- A notice of appeal is not itself an appeal; a party cannot pursue an appeal and review simultaneously
- Review may be granted under Rule 33(1)(d) for other sufficient reason in the interests of justice even where the strict discovery-of-new-evidence threshold is not met
Court orders
#- 1.The application is allowed and an order for review granted to the extent that Kshs.508,856.94 awarded as gratuity is set aside, removed, and discounted from the award
- 2.The decree issued on 23rd May 2022 is set aside and a fresh decree to issue reflecting the correct amounts
- 3.No order as to costs on the application
- Jurisdiction invoked
- Section 16 of the Employment and Labour Relations Court Act and Rule 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, "Mong’are v National Government Constituencies Development Fund Board (Cause 66 of 2018) [2023] KEELRC 301 (KLR)", Case Analysis (2023). Not stated in the judgment text provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/301/eng@2023-02-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.