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)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether failure to annex the decree renders the review application fatally defective
No - under Rule 33 of the ELRC (Procedure) Rules it is not mandatory to exhibit the decree or order sought to be reviewed.
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.
Whether discovery of new and important matter was established
No. The appointment letters and salary figures were on record at trial; the post-judgment verification by the County Attorney was not new evidence.
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.
Whether there was an error apparent on the face of the record in the computation of salary arrears
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.
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.
Whether the award of costs and interest could be revisited on review
No. Costs and interest were awarded in the exercise of judicial discretion and review is not a vehicle to attack such discretion.
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.
Whether the applicant could raise, in submissions, that only 38 claimants for 6 months were pleaded
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.
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.
Legal principles established
#- 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
#- 1.The Notice of Preliminary Objection by the Claimants dated 12th January 2024 is dismissed
- 2.The Notice of Motion dated 13th December 2023 is dismissed
- 3.Each party will bear own costs in the Notice of Preliminary Objection and in 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
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.