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ELRCPartially AllowedNot stated in the judgment text provided· [2023] KEELRC 301 (KLR)

Mong’are v National Government Constituencies Development Fund Board (Cause 66 of 2018) [2023] KEELRC 301 (KLR)

Employment and Labour Relations Court
2 February 2023
3,734 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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This ruling by David Nderitu J of the Employment and Labour Relations Court at Nakuru determines a Notice of Motion dated 14th October 2022 by the Respondent seeking review of the judgment of O. Makau J delivered on 12th May 2022, which had awarded the Claimant withheld salary, salary for November 2016, and gratuity of Kshs.508,856.94 totalling Kshs.2,015,336.94. The Respondent sought review on the ground that new evidence showed the gratuity had already been paid, so the award amounted to double payment and unjust enrichment. The Claimant opposed, arguing that the Applicant had filed a notice of appeal which barred review, that the discovery-of-new-evidence threshold had not been met, and that the application was filed after inordinate, unexplained delay. The court found that the Respondent had proved payment of gratuity of Kshs.694,822 through payment vouchers, which the Claimant's bare denial failed to rebut, but that no satisfactory explanation was given for failing to produce that evidence at trial, so Rule 33(1)(a) was not satisfied. It held that a notice of appeal is merely an expression of intention and not an appeal, and the notice had in any event been withdrawn. The roughly five-month delay was held not inordinate. Invoking 'other sufficient reason' under Rule 33(1)(d), the court allowed review, setting aside the Kshs.508,856.94 gratuity award and ordering a fresh decree to issue, with no order as to costs given the Applicant's own failure to avail the evidence at trial. The court also condemned both counsel for filing documents without leave.

Key legal issues

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01

Whether the discovery of new evidence ground under Rule 33(1)(a) was established

Holding

Not established - no explanation for non-production at trial

Reasoning

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.

p. 6
02

Whether a filed notice of appeal bars an application for review

Holding

No - a notice of appeal is merely an expression of intention to appeal, not an appeal

Reasoning

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.

p. 6
03

Whether review could nonetheless be granted for other sufficient reason

Holding

Yes - under Rule 33(1)(d), to prevent double payment and unjust enrichment

Reasoning

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.

p. 7
04

Whether the delay of about five months in filing the application was inordinate

Holding

No - the delay, though unexplained, was neither inordinate nor prolonged

Reasoning

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.

p. 6

Legal principles established

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  • 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

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  1. 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. 2.The decree issued on 23rd May 2022 is set aside and a fresh decree to issue reflecting the correct amounts
  3. 3.No order as to costs on the application

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3, 3A, 80
  • Employment and Labour Relations Court ActSections 3(1), 12(3)(viii), 16
  • Employment and Labour Relations Court (Procedure) Rules, 2016Rule 33
  • Civil Procedure RulesOrder 45(1)(b)
  • Constitution of KenyaArticle 159

Cases cited (11)

  • Sergii Gergel V Arfa Afra Ltd T/a Imax Africa Ltd
    (2020) eKLR
  • Wananchi Group Limited V Communications Commission of Kenya & Others
    (2013) eKLR
  • Kenya Power & Lighting Co Ltd V London Distillers (K) Ltd
    (2014) eKLR
  • Apungu Arthur Kibira V Independent Electoral & Boundaries Commission & 2 Others
    (2018) eKLR
  • Nicholas Kiptoo Arap Korir Salat V IEBC & 7 Others
    (2014) eKLR
  • Serephen Nyasani Menge V Rispah Onsase
    (2018) eKLR
  • Republic V Advocates Disciplinary Tribunal Ex parte Apollo Mboya
    (2019) eKLR
  • Executive Committee Chelimo Plot Owners Welfare Group & 288 Others V Lang'at Joel & Others
    (2018) eKLR
  • Menginya Salim Murgani V Kenya Revenue Authority
    (2014) eKLR
  • Peterson Ndung'u & 5 Others V Kenya Power & Lighting Co. Ltd
    (2018) eKLR
  • Noradhco Kenya Limited V Loria Michele
    (1998) eKLR
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

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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, "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.