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ELRCDismissedNot stated in the judgment provided· [2024] KEELRC 455 (KLR)

Kenya Union of Clinical Officers & 76 others v County Government of Vihiga & another (Employment and Labour Relations Claim 32 of 2021) [2024] KEELRC 455 (KLR)

Employment and Labour Relations Court of Kenya
29 February 2024
8,698 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~35 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court dismissed a county government's attempt to review a salary arrears award, confirming review cannot be used to relitigate evidence or challenge discretionary decisions.

What this practically means

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Executive summary

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This ruling of the Employment and Labour Relations Court at Kakamega, delivered by J.W. Keli, Judge, on 29th February 2024, determines the Respondent/Applicant's Notice of Motion dated 13th December 2023 seeking review of the judgment of 26th May 2023 (which awarded salary arrears, costs and interest to the Claimants) and of the court's computation ruling of 30th November 2023. The County Applicant sought to substitute the court's computation (69 workers at Kshs. 81,780 monthly) with a County Attorney's verification list of 32 officers at Kshs. 23,780 monthly, to set aside the costs and interest orders, and to secure instalment payment terms. The Claimants filed a preliminary objection contending the application was fatally defective for failure to exhibit the decree. The court dismissed the objection, holding that Rule 33 of the ELRC (Procedure) Rules does not require annexing the decree, following the Court of Appeal in Peter Kirika Githaiga v Betty Rashid. On the merits, the court held the appointment letters were not new evidence, having been on record since December 2019; the Kshs. 81,780 figure was supported by unchallenged trial evidence including the Respondent's own payroll (D-exhibit 1), which reflected allowances; and the post-judgment verification was of no use since it occurred after determination. The court declined to revisit costs and interest, holding discretion is reviewable only on appeal, and rejected the late submissions on pleadings as afterthoughts. The application was dismissed with each party bearing own costs.

Key legal issues

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01

Whether failure to annex the decree renders the review application fatally defective

Holding

No - under Rule 33 of the ELRC (Procedure) Rules it is not mandatory to exhibit the decree or order sought to be reviewed.

Reasoning

The court distinguished the Order 45 Civil Procedure Rules authorities relied on by the Claimants, noting the ELRC has its own procedural rules which, unlike Order 45, do not require annexing the decree. It followed the Court of Appeal in Peter Kirika Githaiga v Betty Rashid, holding that where the decision complained of is on the court file, the application is not defective. The preliminary objection was therefore dismissed.

p. 6
02

Whether discovery of new and important matter was established

Holding

No. The appointment letters and salary figures were on record at trial; the post-judgment verification by the County Attorney was not new evidence.

Reasoning

The court found the letters of appointment dated 10th May 2019 had been filed by the Claimants in December 2019 and produced at the hearing. The Respondent itself produced a payroll (D-exhibit 1) prepared by its own officers showing Kshs. 81,780 per month. The alleged verification of 32 officers occurred only after determination and could not found a review.

p. 14
03

Whether there was an error apparent on the face of the record in the computation of salary arrears

Holding

No. The employment letters referred to basic salary plus allowances, and the payroll evidence reflected allowances as part of monthly salary, supporting the Kshs. 81,780 figure.

Reasoning

The court held the letters of appointment stated an entry point basic salary with allowances per SRC guidelines; the payroll produced by the Respondent's defence witness confirmed the total monthly salary. The figures adopted in the computation were grounded in admitted and unchallenged evidence, so no error apparent on the face of the record existed.

p. 14
04

Whether the award of costs and interest could be revisited on review

Holding

No. Costs and interest were awarded in the exercise of judicial discretion and review is not a vehicle to attack such discretion.

Reasoning

The court noted it had explained the awards of costs and interest in its judgment of 26th May 2023 and that the proper avenue for a party aggrieved by an exercise of discretion is an appeal, not review. This ground of the application therefore failed.

p. 15
05

Whether the applicant could raise, in submissions, that only 38 claimants for 6 months were pleaded

Holding

No. Submissions are not pleadings, and the point was not a ground of the application; the case at trial concerned 69 claimants and 20 months' arrears.

Reasoning

The court observed that the tabulation for 69 employees was admitted without objection and both parties led evidence on it; even the applicant's own prayer 7 admitted 20 months' arrears. Relying on the Supreme Court in Evans Muriuki Muthuuri v Attorney General and Odd Jobs v Mubia, the court held it was obliged to focus on substantive justice over the unpleaded-point objection.

p. 15

Legal principles established

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  • It is not mandatory under the ELRC (Procedure) Rules to annex the decree or order sought to be reviewed; failure to do so does not render a review application fatally defective.
  • Submissions are not pleadings and cannot introduce a new case or grounds not raised in the application or at trial.
  • A party may not use review to challenge the exercise of judicial discretion on costs and interest; that is a matter for appeal.
  • A court may determine an unpleaded issue where the parties canvassed it at hearing and left it to the court, per Odd Jobs v Mubia as adopted by the Supreme Court in Evans Muriuki Muthuuri v Attorney General.
  • Evidence adduced and admitted without objection at trial cannot later be recharacterised as 'new and important matter' justifying review.

Court orders

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  1. 1.The Notice of Preliminary Objection by the Claimants dated 12th January 2024 is dismissed
  2. 2.The Notice of Motion dated 13th December 2023 is dismissed
  3. 3.Each party will bear own costs in the Notice of Preliminary Objection and in the Application

Authorities

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Legislation

  • Employment and Labour Relations Court ActSection 16
  • Employment and Labour Relations Court (Procedure) RulesRule 33
  • Civil Procedure RulesOrder 45 (and Order XLIV as formerly numbered)
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Constitution of Kenya, 2010Article 10

Cases cited (22)

  • Suleiman Murunga v Nilestar Holdings Limited & another
    [2015] eKLR
  • Wilson Saina v Joshua Cherutich Company Ltd
    [2003] eKLR
  • Gatimu Farmers Ltd v John Njoroge Ndungu
    Nakuru HCC No. 197/2001
  • Peter Kirika Githaiga & another v Betty Rashid
    [2016] eKLR
  • Francis Origo & Another v Jacob Kumali Mungala
    Civil Appeal No. 149 of 2001 [2005] 2 K.L.R
  • Samuel Mwehia Gitau v Elijah Kipngeno Arap Bii' & Another
    Civil Appeal Application 255 of 2004
  • Dhanji Ramji v Malde Timber
    (1970) E.A 427
  • Edward Muthuri v Airfreight Forwarders Limited
    Civil Appeal No. 134 of 2009
  • Fredrick Ngari Muchira and 99 others v Pyrethrum Board of Kenya
    [2013] eKLR
  • Pancreas T. Swai v Kenya Breweries Limited
    [2014] eKLR
  • Independent Electoral and Boundaries Commission & another vs Stephen Mutinda Mule & 3 others
    (2014) eKLR
  • Republic v Advocates Disciplinary Tribunal Ex Parte Apollo Mboyo
    [2019] eKLR
  • Rose Kaiza v Angelo Mpanguiza
    [2009] eKLR
  • E. T. v Attorney General and another
    [2012] eKLR
  • United India Co. Ltd and Kenindia General Insurance Co. Ltd v East African Underwriters (Kenya) Ltd
    [1982-1988] LKAR 639
  • Methodist Church in Kenya Trustees Registered v Attorney General & 6 others
    [2010] eKLR
  • Nabro Properties Limited v Sky Structures Limited
    [2002] eKLR
  • Jasbir Singh Rai and 3 others vs Tarlochan Singh Rai and 4 others
    (2014) eKLR
  • Republic v Communication Authority of Kenya and another ex-parte Legal Service Advice Centre aka Kituo cha Sheria
    [2015] eKLR
  • Hussein Janmohamed & sons v Twentsche Oversees Trading Co. Ltd.
    [1967] EA 287
  • Evans Muriuki Muthuuri and others v Attorney General and others
    Petition 15(E022) of 2021
  • Odd Jobs v. Mubia
    [1970] EA 476
Jurisdiction invoked
Section 16 of the Employment and Labour Relations Court Act and Rule 33 of the Employment and Labour Relations Court (Procedure) Rules

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, "Kenya Union of Clinical Officers & 76 others v County Government of Vihiga & another (Employment and Labour Relations Claim 32 of 2021) [2024] KEELRC 455 (KLR)", Case Analysis (2024). Not stated in the judgment provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/455/eng@2024-02-29

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