[2018] KEELRC 472 (KLR)
The Court found that it had already given reasons for denying relief to the 2nd and 3rd Claimants, specifically the absence of pay or terminal records produced during the hearing. The applicants' argument that such records were produced by the Respondent did not warrant review, as the Court's findings were clear and...
Source-derived case information.
- Citation
- [2018] KEELRC 472 (KLR)
- Parties
- Applicant: Shadrack Otuoma Khamla; Applicant: George Obilo Oyier; Applicant: Henry Kunani Shemema; Applicant: Jaqueline Okach; Applicant: David Nzeka Kamami; Applicant: Benard Otieno Otwal; Applicant: Joseph Nzau Ndetto; Applicant: Isaac Mutie Kimeu; Respondent: Aniket Enterprises Ltd
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 872 of 2013
- Procedural Posture
- Review Application / Ruling on Application to Review Judgment and Vary Orders
- Outcome
- Application dismissed in respect of the 2nd and 3rd Claimants; order denying costs to successful Claimants set aside; costs awarded to successful Claimants.
- Judges
- MSA Makhandia
- Legal Topics
- Review of Judgment, Costs Award, Redundancy Procedure, Proof of Terminal Benefits
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Shadrack Otuoma Khamla
Applicant
George Obilo Oyier
Applicant
Henry Kunani Shemema
Applicant
Jaqueline Okach
Applicant
David Nzeka Kamami
Applicant
Benard Otieno Otwal
Applicant
Joseph Nzau Ndetto
Applicant
Isaac Mutie Kimeu
Applicant
Aniket Enterprises Ltd
Respondent
Procedural Posture
Review Application / Ruling on Application to Review Judgment and Vary Orders
Legal Issues
- 1 Whether the 2nd and 3rd Claimants should be included in the computation of awards against the Respondent.
- 2 Whether the Court should review or vary its judgment dated 18th May 2018 to grant reliefs to the 2nd and 3rd Claimants.
- 3 Whether the order denying the Claimants costs of the suit should be set aside and substituted with an order granting costs.
Ratio Decidendi
The Court found that it had already given reasons for denying relief to the 2nd and 3rd Claimants, specifically the absence of pay or terminal records produced during the hearing. The applicants' argument that such records were produced by the Respondent did not warrant review, as the Court's findings were clear and supported by the evidence on record. The Court emphasized that review is not a substitute for appeal, and that the applicants' grievances were more appropriately addressed through appellate proceedings. However, the Court accepted the applicants' narration regarding the issue of costs and found that the previous order denying costs to the successful Claimants was erroneous....
Court Disposition
Application dismissed in respect of the 2nd and 3rd Claimants; order denying costs to successful Claimants set aside; costs awarded to successful Claimants.
Orders
- The application dated 28 September 2018 as regards the 2nd and 3rd Claimants is dismissed with costs to the Respondent.
- The order denying costs of the main Cause to the successful Claimants is set aside.
Full Case Text
Judgment text and source record
50 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI
CAUSE NO. 872 OF 2013
SHADRACK OTUOMA KHAMLA 1st CLAIMANT
GEORGE OBILO OYIER 2nd CLAIMANT
HENRY KUNANI SHEMEMA 3rd CLAIMANT
JAQUELINE OKACH 4th CLAIMANT
DAVID NZEKA KAMAMI 5th CLAIMANT
BENARD OTIENO OTWAL 6th CLAIMANT
JOSEPH NZAU NDETO 7th CLAIMANT
ISAAC MUTIE KIMEU 8th CLAIMANT
v
ANIKET ENTERPRISES LTD RESPONDENT
RULING NO. 2
1. For determination is an application dated 28 September 2018 by the 2nd and 3rd Claimants (applicants) seeking orders
1. …
2. THAT this Honourable Court be pleased to review and/or vary of its judgment dated and delivered on 18th May, 2018.
3. THAT the 2nd and 3rd Claimants be included in the computation of the Honourable Court’s awards against the Respondent.
4. THAT the judgment be entered for the 2nd and 3rd Claimants as against the Respondent as follows:-
1. 2nd Claimant
(a) Notice pay………….Kshs 10,000
(b) Compensation…… Kshs. 20,000
2. 3rd Claimant
(a) Notice pay…………. Kshs. 10,000
(b) Compensation……..Kshs 20,000
5. THAT the Honourable Court do review, vary and/or set aside the order denying the Claimants costs of the suit and be substituted with an order granting the Claimants costs of the suit.
6. THAT the Honourable Court do issue such orders and directions as it may consider fit and just.
7. THAT the cost of this application be borne by the Respondent.
2. The grounds advanced in support of the application are that the Court erred in not awarding the 2nd and 3rd Claimants the reliefs sought as their terminal benefits were set out in the Memorandum of Claim; that the 2nd and 3rd Claimants were not issued with redundancy letters; that the deadline for filing submissions fell on a public holiday, and hence costs should not have been denied on that account and that the Respondent stood to suffer no prejudice.
3. The Respondent filed a replying affidavit in opposition to the application and contended that the application was incompetent; did not meet the threshold set by Rule 33 of the Employment and Labour Relations Court (Procedure) Rules, 2016; the issues raised were res judicata as the Court made specific findings against the 2nd and 3rd Claimants, and that the avenue available to the applicants was an Appeal.
4. The Court has considered the grounds on the face of the application, the affidavits in support and opposition.
5. When denying the 2nd and 3rd Claimants relief, the Court gave a reason at paragraph 39.
6. The reason was that no pay/terminal records for these 2 Claimants were produced during the hearing.
7. These 2 applicants now argue that the records were filed/produced by the Respondent.
8. The Court having given reasons for rejecting the claims by the 2nd and 3rd Claimants, it is the view of the Court that it is not open to the applicants to seek to re-open the litigation through the review jurisdiction.
9. The Court finds comfort in the passage by the Court of Appeal in Abasi Belinda v. Frederick Kangwamu and another (1963) E.A. 557 that
a point which may be a good ground of appeal may not be a good ground for an application for review and an erroneous view of evidence or of law is not a ground for review though it may be a good ground for appeal..
10. As urged by the Respondent, the proper route to challenge the conclusions by this Court is through an Appeal.
11. On the question of costs, the Court has confirmed the narration by the applicants and confirmed the same are correct. The order on costs is therefore set aside.
12. But just to mention that the Claimants whom the Court made awards in favour of had their employments terminated through letters dated 2 November 2012. The reason given for the terminations of contract(s) were current market economical effects. The 2nd and 3rd Claimants were however deemed to have deserted work through a letter dated 27 November 2012, and addressed to the District Labour Officer (the causes of action were different).
13. It was therefore incumbent upon the 2nd and 3rd Claimants to lead adequate evidence to prove their respective causes of actions.
14. The Court finds no merit in the application dated 28 September 2018 as it regards the 2nd and 3rd Claimants and orders that it be dismissed with costs to the Respondent.
15. The order denying costs of the main Cause to the successful Claimants is set aside and costs are awarded.
Delivered, dated and signed in Nairobi on this 13th day of December 2018.
Radido Stephen
Judge
Appearances
For applicants Nyabena Nyakundi & Co. Advocates
For Respondent Tariq Khan & Associates Advocates
Court Assistant Lindsey