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ELRCPartially AllowedELRC No. 84 of 2020· [2025] KEELRC 798 (KLR)

Kaguthi & 11 others v Principal Secretary, Ministry of Interior and Coordination of National Government & another (Petition 84 of 2020) [2025] KEELRC 798 (KLR)

Employment and Labour Relations Court
13 March 2025
RSRadido Stephen
1,291 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This ruling by the Employment and Labour Relations Court at Nairobi (Radido Stephen, J) determines a Motion dated 22 October 2024 by the 1st Petitioner seeking, first, leave for the firm of M.M. Gitonga Advocates LLP to come on record in place of M/S J.A. Guserwa & Co. Advocates, and secondly, review of the judgment of 27 October 2022 insofar as it omitted the 1st Petitioner from the award of underpayment granted to the 2nd to 11th Petitioners and failed to state whether the gratuity award applied to him. The background was a judgment of 27 October 2022 awarding underpayment of Kshs 11,704,000 to each of the 2nd to 11th Petitioners, token damages for infringement of constitutional rights, gratuity and costs; a review ruling of 25 April 2023 correcting computations; appeals lodged by the Respondents; and a Court of Appeal order of 9 February 2024 staying execution of the judgment and ruling pending Civil Appeal No. E298 of 2023. The Respondents filed a preliminary objection contending the Motion was incompetent and an abuse of process given the pending appeal and stay. The Court held that section 80 of the Civil Procedure Act curtails the right of review of a decree under appeal, and that the 1st Petitioner was aware of the pending appeal. The Motion was found to lack merit save that leave was granted for M.M. Gitonga Advocates LLP to come on record, the Court holding that the stay order did not limit the choice of advocate. For filing submissions out of the agreed timelines, the 1st Petitioner was condemned to pay the Respondents' costs.

Key legal issues

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01

Competence of a review motion where the decree is under appeal and execution is stayed

Holding

The review Motion lacks merit; the right of review is curtailed by section 80 of the Civil Procedure Act where a decree has been appealed and an appeal is pending

Reasoning

The Court noted the 1st Petitioner was part of an earlier review motion determined in 2023, is a respondent in the pending Civil Appeal No. E298 of 2023, and was aware of the appeal when filing. Section 80 of the Civil Procedure Act curtails review of a decree under appeal. The Motion was therefore without merit save for the change of advocates.

p. 4
02

Change of advocates after judgment

Holding

Leave was granted for M.M. Gitonga Advocates LLP to come on record for the 1st Petitioner

Reasoning

A party may choose an advocate of choice during litigation, but after judgment leave of the Court is required. The Court held the Court of Appeal stay order did not limit the 1st Petitioner's right to choose an advocate at this stage, and allowed the firm on record.

p. 4

Legal principles established

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  • The right to bring a review application is curtailed where the decree has been appealed and the appeal is pending
  • After judgment has been delivered, leave of the Court is required for an advocate to come on record
  • A Court of Appeal stay of execution order does not limit a party's right to choose an advocate to represent them

Court orders

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  1. 1.The firm of M.M. Gitonga Advocates LLP allowed to come on record for the 1st Petitioner in the Petition file
  2. 2.The Motion dated 22 October 2024 otherwise dismissed for lack of merit
  3. 3.The 1st Petitioner condemned to pay the Respondents' costs for failing to file submissions within the agreed timelines
Jurisdiction invoked
Section 80 of the Civil Procedure Act and rules of the Court permitting review of judgments

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, "Kaguthi & 11 others v Principal Secretary, Ministry of Interior and Coordination of National Government & another (Petition 84 of 2020) [2025] KEELRC 798 (KLR)", Case Analysis (2025). ELRC No. 84 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/798/eng@2025-03-13

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