[2020] KECA 211 (KLR)
The Court held that the draft order prepared by the Registrar correctly reflected the judgment delivered on 4th November, 2016. The award for accrued salaries and house allowance arrears granted by the High Court was set aside, but all other orders, including the declaratory order that the respondents were entitled...
Source-derived case information.
- Citation
- [2020] KECA 211 (KLR)
- Parties
- Appellant: Gilgil Telcoms Industries Limited; Respondent: Duncan Nderitu & 55 Others; Respondent: Telcom Kenya Limited
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 147 of 2018
- Procedural Posture
- Civil Appeal / Application for Settlement of Terms Following Judgment
- Outcome
- Application allowed. Terms of the order settled as per the Registrar's draft.
- Judges
- J Karanja
- Legal Topics
- Settlement of Terms, Drafting of Orders, Accrued Salaries Dispute, House Allowance Arrears, Costs Orders, Declaratory Relief
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Gilgil Telcoms Industries Limited
Appellant
Duncan Nderitu & 55 Others
Respondent
Telcom Kenya Limited
Respondent
Procedural Posture
Civil Appeal / Application for Settlement of Terms Following Judgment
Legal Issues
- 1 Whether the draft order accurately reflects the judgment of the Court of Appeal dated 4th November, 2016.
- 2 Whether the award for accrued salaries and house allowance arrears was properly set aside.
- 3 Who bears the responsibility for drafting and serving the order after a partially successful appeal.
Ratio Decidendi
The Court held that the draft order prepared by the Registrar correctly reflected the judgment delivered on 4th November, 2016. The award for accrued salaries and house allowance arrears granted by the High Court was set aside, but all other orders, including the declaratory order that the respondents were entitled to benefits under the revised terms of service and the order on costs, remained undisturbed. The Court found no merit in the respondent's arguments regarding timelines for drafting and serving the order, as both parties could have initiated the process given the partial success of the appeal. The terms of the order were therefore settled as per the Registrar's draft.
Court Disposition
Application allowed. Terms of the order settled as per the Registrar's draft.
Orders
- The terms of the order in this appeal are settled as per the draft by the Registrar dated 4th November, 2016.
- The award for accrued salaries and house allowance arrears is set aside.
Full Case Text
Judgment text and source record
29 paragraphs
IN THE COURT OF APPEAL
AT NAIROBI
CORAM: KARANJA, J.A (IN CHAMBERS)
NAKURU CIVIL APPEAL (APPLICATION) NO. 147 OF 2018
BETWEEN
GILGIL TELCOMS INDUSTRIES LIMITED..........................................................APPELLANT
AND
DUNCAN NDERITU & 55 OTHERS......................................................1-56THRESPONDENTS
TELCOM KENYA LIMITED.......................................................................57THRESPONDENT
(An application for Settlement of Terms from the Judgment of the Court of Appeal siting
at Nairobi (Alnashir Visram, W. Karanja, & J. Mohammed, JJ.A)
dated 4thNovember, 2016inCivil appeal No. 147 of 2013
Consolidated withCivil Appeal No. 137 of 2013)
********************************
RULING
Vide a notice of motion dated 29th November 2018, the applicant has moved this Court under Rules 33 and 34 of the Court of appeal Rules for settlement of terms of the draft order emanating from this Court’s judgment dated 4th November, 2016. In the said judgment, this Court (A. Visram, W. Karanja and J. Mohammed, JJ.A) partially allowed the appeal in favour of the appellant in the following terms:-
“The upshot of the foregoing is that the appeal herein succeeds in part to the extent that the order issued and award made in favour of the respondents in respect of the accrued salaries and house allowance arrears is hereby set aside. Each party bears its own costs in this appeal.”
I have considered the grounds on the face of the application and the contents of the rival affidavits sworn by Prof. Tom Ojienda SC and Mr. Robert Kamau Irungu, the in-house legal advisor for Telcom Kenya Limited.
First, I note that learned counsel for the respondent has raised the issue of the timelines within which the order should have been drafted and served. Under Rule 34(2), the duty to draft the order falls on the party who has been “substantially successful”. In this case, as the appeal only partially succeeded, it can be argued that both parties partially succeeded and either of them could have initiated the draft order. I do not think the discourse on the timelines in this case will add any substance to this application and I will therefore not consider the same for purposes of this Ruling. I will only render myself on the correctness or otherwise of the contested draft order.
I do not see the difficulty in understanding this order. It plainly means that the award by the High Court in respect of accrued salaries and house allowance arrears was set aside. This would therefore, mean that all the other orders granted by the High Court, including the order on costs remained the same. The declaratory order (b) is drawn from paragraph 29 of the judgment where the Court stated:-
“We find that the trial Judge did not err in granting the declaratory order to the effect that the respondents were entitled to the benefits under the revised terms of service.”
The above reflects the draft order dated 4th November, 2016 as drafted by the Registrar of this Court. The terms of the order in this appeal are accordingly settled as per the draft by the Registrar.
Dated and delivered at Nairobi this 6thday of November, 2020.
W. KARANJA
...................................
JUDGE OF APPEAL
I certify that this is a true copy of the original.
Signed
DEPUTY REGISTRAR