[2015] KEELRC 507 (KLR)
The court found that the issue of the authenticity of the employment letter had already been fully addressed and determined in the main award, with both parties having had the opportunity to present and challenge evidence. The subsequent criminal proceedings against the claimant, initiated after the conclusion of...
Source-derived case information.
- Citation
- [2015] KEELRC 507 (KLR)
- Parties
- Claimant: Gilbert Kasumari Kithi; Respondent: Nyali Beach Holiday Resort Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Cause 22 of 2014
- Procedural Posture
- Employment Cause / Ruling on Application for Review and Stay of Award
- Outcome
- application rejected; costs to claimant
- Judges
- J Rika
- Legal Topics
- Unfair Termination, Terminal Benefits, Review of Award, Stay of Execution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Gilbert Kasumari Kithi
Claimant
Nyali Beach Holiday Resort Limited
Respondent
Procedural Posture
Employment Cause / Ruling on Application for Review and Stay of Award
Legal Issues
- 1 Whether the court should review or set aside its award based on alleged forgery of the employment letter.
- 2 Whether pending criminal proceedings against the claimant justify a stay or deposit of the decretal sum.
Ratio Decidendi
The court found that the issue of the authenticity of the employment letter had already been fully addressed and determined in the main award, with both parties having had the opportunity to present and challenge evidence. The subsequent criminal proceedings against the claimant, initiated after the conclusion of the civil hearing, were deemed irrelevant to the court's findings and did not warrant a review or stay of the award. The court emphasized that its decision was based on the evidence and law as presented during the hearing, and post-judgment developments could not retroactively affect the outcome. Accordingly, the application for review or stay was rejected, and costs were awarded...
Court Disposition
application rejected; costs to claimant
Orders
- The application dated 31st March 2015 is rejected.
- Costs to the claimant.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE INDUSTRIAL COURT AT MOMBASA
CAUSE NUMBER 22 OF 2014
BETWEEN
GILBERT KASUMARI KITHI ………………………………………………………….CLAIMANT
VERSUS
NYALI BEACH HOLIDAY RESORT LIMITED..………………….……………….RESPONDENT
Rika J
Court Assistant: Benjamin Kombe
___________________________
Mr. Kenga Advocate instructed by Kenga & Company Advocates for the Claimants
Mr. Omwenga Advocate instructed by Mogaka Omwenga & Mabeya Advocates for the Respondent
____________________________________________________________________________
RULING
1. On 13th March 2015, the Court gave an Award in favour of the Claimant, for the total sum of Kshs. 898,461, comprising terminal dues and compensation for unfair termination.
2. The Respondent filed an Application dated 31st March 2015 seeking to have the Award reviewed and set aside; or in the alternative, the decretal amount is deposited in a joint, interest-earning account in the name of the Advocates, pending hearing and determination of Mombasa Chief Magistrate’s Court Criminal Case No. 15 of 2015, in which the Claimant is an accused person.
3. The Application is supported by the Affidavit of Mr. Ratilal Shah, Respondent’s Director, sworn on 30th March 2015. The Claimant filed a Replying Affidavit sworn on the 23rd April 2015, opposing the Application. Parties agreed to have the Application considered and determined on the strength of these Affidavits and Submissions on record.
The Court Finds:-
4. The Application by the Respondent is based on the letter of employment relied on by the Claimant, in his successful Claim for terminal benefits and compensation. The Respondent states this letter was forged. It was not issued by the Respondent. It should not have been relied upon. The Claimant has since been arrested and charged in the Criminal Court, with regard to the letter.
5. This letter was dealt with by the Court in its decision specifically in paragraph 17 to 24 of the Award. There is no reason for the Court to revisit, or interfere with its findings under the Award, with regard to the letter of employment.
6. The criminal proceedings, coming shortly after this Court concluded the hearing of the Claim before it, has no relevance to the concluded hearing. The Claim was filed in February 2014. Documents were exchanged last year. Evidence on either side was scrutinized through cross-examination. The Court had the opportunity to evaluate evidence, and invoked the relevant employment law, with respect to the letter of employment.
7. What the Parties do after the Court gave its decision has no bearing on the record. IT IS ORDERED:-
a) The Application dated 31st March 2015 is rejected.
b) Costs to the Claimant.
Dated and delivered at Mombasa this 25th day of September, 2015
James Rika
Judge