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ELRCPartially AllowedKisumu ELRC Judicial Review application re Notice of Motion dated 27th March, 2025 (arising from Kisumu ELRC No. 87 of 2019)· [2025] KEELRC 1424 (KLR)

Ondieki v Kisii County Assembly Service Board & 2 others (Judicial Review E027 of 2024) [2025] KEELRC 1424 (KLR)

Employment and Labour Relations Court
19 May 2025
2,551 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The court reviewed its own ruling, confirmed the gratuity amount was already settled, and ordered the County Assembly's Accounting Officer to pay Kshs.8.66 million.

What this practically means

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Executive summary

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The ex parte applicant, a former member of the Kisii County Assembly Service Board, moved the Court by Notice of Motion dated 27th March 2025 under Section 16 of the Employment and Labour Relations Court Act and Rule 74 of the ELRC (Procedure) Rules 2024, seeking review of the Court's Ruling of 25th February 2025 which had directed the 1st respondent to compute his gratuity within 21 days, and sought mandamus compelling the 2nd respondent, the Accounting Officer, to pay Kshs.8,529,030.00 per the Certificate of Order Against the Government issued on 29th July 2024. The respondents, through a Replying Affidavit of Jacob M. Onkeo, contended that gratuity with 5% interest had been paid in full via LAPFUND in 2017, and that the applicant's computation wrongly used 100% of basic salary contrary to the SRC circular prescribing 31%. The court found the application was filed within reasonable time and, relying on National Bank of Kenya v Ndungu Njau and Muyodi v ICDC, held that the Ruling of 25th February 2025 disregarded the applicant's adopted computation of 4th March 2024 and the Certificate of Order Against the Government, which the respondents had never appealed or contested; computation was therefore settled and only enforcement remained. The court reviewed the Ruling, set aside the computation direction in totality, and issued mandamus compelling the 2nd respondent to pay Kshs.8,529,030.00 plus taxed costs of Kshs.133,550.00. Each party was ordered to bear their own costs of the application.

Key legal issues

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01

Jurisdiction to review own judgments and orders

Holding

The ELRC has power to review its judgments, awards, orders or decrees under Section 16 of the ELRC Act and Rule 74 of the ELRC (Procedure) Rules 2024.

Reasoning

The court recited the statutory framework: Section 16 of the Employment and Labour Relations Court Act empowers the court to review its judgments, awards, orders or decrees in accordance with the Rules, and Rule 74 sets out the grounds of discovery of new matter, error apparent on the face of the record, need for clarification, or any other sufficient reason. A party who chooses not to appeal may pursue review within reasonable time.

p. 4
02

Error apparent on the face of the record

Holding

The Ruling of 25th February 2025 directing re-computation of gratuity was made in disregard of the Certificate of Order Against the Government dated 29th July 2024 and the adopted computation, and constituted an error apparent on the face of the record.

Reasoning

The court found it common ground that the impugned Ruling required the 1st respondent to compute gratuity, yet the applicant had filed his computation on 25th January 2024, which was adopted on 4th March 2024, and had secured a Certificate of Order Against the Government. The respondents had neither appealed the judgment of 15th February 2023 nor contested the decree, so computation was settled and only enforcement remained; the computation direction ought not to have been made.

p. 6
03

Mandamus to compel compliance with a Certificate of Order Against the Government

Holding

Mandamus issued to compel the 2nd respondent, as Accounting Officer, to pay the decretal sum of Kshs.8,529,030.00 together with taxed costs of Kshs.133,550.00.

Reasoning

Since computation of gratuity had been settled by the court and embodied in the Certificate of Order Against the Government, all that remained was enforcement. The court granted the review, set aside the computation direction and issued mandamus against the Accounting Officer to pay the decretal sum and taxed costs as stated in the certificate.

p. 6

Legal principles established

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  • A review may be granted whenever the court considers it necessary to correct an apparent error or omission on the part of the court; the error must be self-evident and require no elaborate argument.
  • An error apparent on the face of the record is one so manifest and clear that no court would permit it to remain on the record; a merely erroneous or possible view is not a ground for review.

Court orders

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  1. 1.The Ruling delivered on 25th February, 2025 is reviewed and the order directing the 1st respondent to compute the applicant's gratuity and file the same within 21 days for adoption is set aside in totality
  2. 2.An Order of mandamus is issued compelling the 2nd respondent to pay the ex parte applicant Kshs.8,529,030.00 being the decretal sum awarded in Kisumu ELRC No. 87 of 2019 together with the taxed costs of Kshs.133,550.00
  3. 3.Each party to bear own costs of the application
Jurisdiction invoked
Section 16 of the Employment and Labour Relations Court Act and Rule 74 of the Employment and Labour Relations Court (Procedure) Rules 2024

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, "Ondieki v Kisii County Assembly Service Board & 2 others (Judicial Review E027 of 2024) [2025] KEELRC 1424 (KLR)", Case Analysis (2025). Kisumu ELRC Judicial Review application re Notice of Motion dated 27th March, 2025 (arising from Kisumu ELRC No. 87 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1424/eng@2025-05-19

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