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ELRCAllowedCause No 36 of 2020· [2024] KEELRC 437 (KLR)

Mtange & 2 others v (Fao & another; Ministry of Foreign Affairs (Third party) (Cause 36 of 2020) [2024] KEELRC 437 (KLR)

Employment and Labour Relations Court
29 February 2024
MMM. Mbarũ
1,775 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court set aside a severance award because the former employees hid that they had already received larger severance payments from the World Food Programme.

What this practically means

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Executive summary

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The respondents, World Food Programme and another, filed a Notice of Motion dated 15 December 2023 through the Attorney General seeking review, variation or setting aside of the judgment of 6 July 2023 in which the claimants were awarded Kshs. 604,656 each in severance pay for unlawful termination, together with an injunction restraining attachment and sale of the respondents' proclaimed property. The respondents argued immunity under Article 105 of the UN Charter and the Privileges and Immunities Conventions, and asserted the claimants had already received substantial severance payments which they failed to disclose. The claimants opposed, relying on the Basic Agreement of 15 January 2002 under which WFP is subject to Kenyan jurisdiction, and on the earlier Replying Affidavit of Ambassador Macharia Kamau confirming WFP can sue and be sued. The court noted that Dr. Korir's Supporting Affidavit did not address Ambassador Kamau's averments, which remain on the record. However, the court found decisive the fact that the claimants received severance payments far exceeding the award - Kshs. 1,145,694.30, Kshs. 1,197,842.79 and Kshs. 1,354,997.09 respectively - which they failed to disclose at the hearing. Applying principles of utmost good faith and material non-disclosure from cited authorities, the court allowed the application, set aside the judgment, decree, attachment and execution proceedings, vacated the severance pay order, and ordered each party to bear its own costs.

Key legal issues

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01

Whether the claimants' non-disclosure of severance payments justified review and setting aside of the judgment

Holding

Yes - the claimants were paid amounts over and above the award and failed to disclose this to the court, entitling the respondents to review and vacation of the severance pay order

Reasoning

The court found the claimants had each received severance sums exceeding the awarded Kshs. 604,656 and did not deny this in the Replying Affidavit. Utmost good faith requires disclosure of all material facts; non-disclosure amounts to unclean hands and abuse of process, disentitling a party from exercising the court's discretion in their favour.

p. 4
02

Whether the respondents' immunity under UN Conventions applied

Holding

The court noted the prior record in which the Government's representative affirmed that WFP has juridical personality and can sue and be sued, and Dr. Korir did not address those averments

Reasoning

Ambassador Macharia Kamau had earlier sworn a Replying Affidavit confirming the Basic Agreement recognises WFP's juridical personality and its obligation to observe Kenyan employment laws for locally recruited staff. Dr. Korir's Supporting Affidavit did not address these averments, which remain the record of the court, weakening the immunity-based case for setting aside.

p. 4

Legal principles established

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  • A party who makes an ex-parte application is under an obligation to make the fullest possible disclosure of all material facts, failing which they cannot obtain any advantage from the proceedings
  • Material non-disclosure is a serious impediment to justice and warrants setting aside of orders obtained without full disclosure

Court orders

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  1. 1.Application dated 15 December 2023 allowed
  2. 2.Judgment, decree, attachment and execution proceedings set aside
  3. 3.Order to pay severance pay vacated on the evidence that the claimants had since received severance payments of Kshs. 1,145,694.30; Ksh. 1,197,842.79; and Ksh. 1,354,997.09
  4. 4.Each party to bear own costs

Authorities

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Legislation

  • Constitution of KenyaArticle 159
  • Civil Procedure ActSections 1A, 1B, 3, 3A, 63(e)
  • Civil Procedure RulesOrder 45 rule 1, Order 51 rule 1
  • Employment and Labour Relations Court (Procedure) Rules, 2016Rule 33
  • Convention on the Privileges and Immunities of the United Nations (General Convention)Article II, Section 2
  • Convention on Privileges and Immunities of Specialised AgenciesArticle III, Section 4
  • Charter of the United NationsArticle 105
  • Basic Agreement between the Government of Kenya and the World Food ProgrammeArticle II Section 2; Section 26(b)
  • Basic Agreement granted to UN Food and Agricultural Organisation (FAO)Paragraph (9)

Cases cited (2)

  • Gabriel Kariuki Gitonga & 2 others v Redken Wells Ltd & 11 others
    [2021] eKLR
  • Standard Limited v Alfred Mincha Ndubi
    [2018] eKLR
Jurisdiction invoked
Article 159 of the Constitution; Sections 1A, 1B, 3, 3A and 63(e) of the Civil Procedure Act; Order 45 rule 1 and Order 51 rule 1 of the Civil Procedure Rules; 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, "Mtange & 2 others v (Fao & another; Ministry of Foreign Affairs (Third party) (Cause 36 of 2020) [2024] KEELRC 437 (KLR)", Case Analysis (2024). Cause No 36 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/437/eng@2024-02-29

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