[2018] KEELRC 1181 (KLR)
The court held that it could not provide further interpretation or clarification that would amount to granting new reliefs not expressly awarded in the original judgment. The Applicant's request for compensation for unfair termination and salary for the remainder of his contract were not granted in the judgment and...
Source-derived case information.
- Citation
- [2018] KEELRC 1181 (KLR)
- Parties
- Applicant: Gilbert Mokaya Ombuki; Respondent: Kenya Ports Authority
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Cause 933 of 2015
- Procedural Posture
- Miscellaneous Application / Ruling on Post Judgment Application for Interpretation and Execution Directions
- Outcome
- application declined
- Judges
- L Ndolo
- Legal Topics
- Unfair Termination, Employment Contract Entitlements, Execution of Judgment, Interpretation of Reliefs
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Gilbert Mokaya Ombuki
Applicant
Kenya Ports Authority
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Post Judgment Application for Interpretation and Execution Directions
Legal Issues
- 1 Whether the court can provide further interpretation or clarification of reliefs already granted in the judgment.
- 2 Whether the applicant is entitled to additional compensation for unfair termination beyond what was expressly awarded in the judgment.
- 3 Whether the court can grant new reliefs not previously awarded in the original judgment.
Ratio Decidendi
The court held that it could not provide further interpretation or clarification that would amount to granting new reliefs not expressly awarded in the original judgment. The Applicant's request for compensation for unfair termination and salary for the remainder of his contract were not granted in the judgment and could not be introduced through a post-judgment application. The court emphasized that it is functus officio regarding the substantive issues already determined and that any dissatisfaction with the reliefs granted must be pursued by way of appeal, not by seeking clarification or interpretation from the same court.
Court Disposition
application declined
Orders
- The Applicant's application dated 13th June 2018 is declined.
- Each party will bear their own costs.
Full Case Text
Judgment text and source record
37 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT MOMBASA
CAUSE NO 933 OF 2015
GILBERT MOKAYA OMBUKI................................................APPLICANT
VS
KENYA PORTS AUTHORITY.............................................RESPONDENT
RULING
1. By a Notice of Motion dated 13th June 2018 and filed in court on even date, the Applicant seeks the following orders:
a) That the Court be pleased to give directions for the purpose of execution of the decree herein;
b) That the Court be pleased to provide an interpretation of the relief in paragraph 33 of the judgment where the Court declared that the Applicant’s dismissal was irregular and unfair;
c) That the Court be pleased to provide an interpretation on the relief in paragraph 34 where the Court directed the Respondent to calculate and pay to the Applicant the dues available to him under his contract of employment.
2. The application, which is supported by the Applicant’s affidavit sworn on 13th June 2018, is based on the following grounds:
a) That by the judgment of the Court delivered on 23rd February 2016, the Court set out relief in paragraphs 33 and 34 thereof, in addition to costs;
b) That upon taxation of the costs, the Applicant issued a ten day notice to the Respondent whose reply made it necessary to file the present application;
c) That the Applicant wishes to draw the attention of the Court to Sections 35(1)(c),(4)(a),(5),49(a) and (c)(4)(f)(h)(m) of the Employment Act.
3. The Respondent’s response is contained in a replying affidavit sworn by the its Principal Legal Officer, Lilian Kamau on 9th July 2018. She depones that pursuant to the judgment delivered by the Court on 23rd September 2016, the Respondent tabulated the dues owed to the Applicant as per his contract of employment in accordance with the judgment.
4. Kamau further depones that the Applicant’s demands as contained in his letters dated 23rd October 2017 and 9th April 2018 are baseless and unjustified since the said claims were neither prayed for by the Applicant nor were they awarded by the Court.
5. The Respondent sets out the dues owing to the Applicant as per his contract of employment as follows:
a) Leave allowance (upon termination as at 26/04/2005)….….…Kshs. 18,000
b) 3 months’ salary in lieu of notice @ Kshs. 32,930………….…….....98,790
c) Half salary withheld during interdiction…………………………….73,950
d) Costs of the suit as taxed……………………………………………196,365
Total…………………………………………………………………….387,105
6. The Respondent remains ready and willing to release this amount to the Applicant. Any pension dues are payable by the Kenya Ports Authority Pension Scheme which is a separate entity independent of the Respondent.
7. The Respondent terms the Applicant’s attempts to draw the attention of the Court to Sections 35(1)(c),(4)(a),(5),49(a) and (c) (4)(f)(h)(m) of the Employment Act as a second appeal, since all the contentious issues of law and fact were duly determined by the Court in its judgment issued on 23rd September 2016.
8. By his application, the Applicant seeks interpretation of paragraphs 33 and 34 of the judgment delivered by my brother Makau Jon23rd September 2016. These paragraphs contain the reliefs granted to the Applicant by the Court.
9. In his oral submission before me on 11th July 2018, the Applicant took issue with the fact that he was not granted compensation for unfair termination in spite of the finding by the Court that his termination was irregular and unfair. The Applicant further states that he is entitled to salary for the remainder of his contract of employment.
10. These are not matters for clarification. What the Applicant seeks are prayers that were not granted by the Court in its judgment on 23rd September 2016. The Court cannot sit on appeal over its own decisions. If the Applicant is dissatisfied with the reliefs granted by my brother Judge, he can only pursue a second appeal in the court of Appeal.
11. For this reason, the Applicant’s application dated 13th June 2018 is declined. Each Party will bear their own costs.
12. Orders accordingly.
DATED SIGNED AND DELIVERED AT MOMBASA THIS 20TH DAY OF SEPTEMBER 2018
LINNET NDOLO
JUDGE
Appearance:
Gilbert Mokaya Ombuki (the Applicant in person)
Miss Kamau for the Respondent