[2022] KEELRC 13325 (KLR)

Igonyi & 66 others v Ogembo Tea Factory Ltd (Cause 286 of 2016) [2022] KEELRC 13325 (KLR) (30 November 2022) (Ruling)

Neutral citation: [2022] KEELRC 13325 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Kisumu

Cause 286 of 2016

S Radido, J

November 30, 2022

Between

Alfred Oginga Igonyi

1st Claimant

Arati Omwange

2nd Claimant

Bonface Obiero

3rd Claimant

Clement Ayienda

4th Claimant

David Mosoba

5th Claimant

Dismas Omwoyo

6th Claimant

Evans Orangi

7th Claimant

Francis Kebwage

8th Claimant

Grace Nyaboke

9th Claimant

Handson Oganga

10th Claimant

Hellen Oyunge

11th Claimant

Henry Ombogo

12th Claimant

Ibrahim Ondara

13th Claimant

Isac Osoro

14th Claimant

James Onyambu

15th Claimant

James Sibwoga

16th Claimant

Jenepher Nyaberi

17th Claimant

Janet Orina

18th Claimant

Jerusa Onchari

19th Claimant

Jowl Mochuma Okero

20th Claimant

Joel Nyakora

21st Claimant

John Bongoye

22nd Claimant

John Nyaboga

23rd Claimant

Joseph Ondari

24th Claimant

Josephine Nyamori

25th Claimant

Lucy Barongo

26th Claimant

Marcella Machoma

27th Claimant

Nathan Osoro

28th Claimant

Peter Okwenda

29th Claimant

Richard Obonyo

30th Claimant

Richard Tani

31st Claimant

Simion Oyongo

32nd Claimant

Simon Mokaya

33rd Claimant

Ziporah Matundra

34th Claimant

Jane Nyambane

35th Claimant

Amos Magembe

36th Claimant

Elizabeth Moraa

37th Claimant

Domnic Onyuoki

38th Claimant

Evaline Oseko

39th Claimant

Ibrahim Nyamgaresi

40th Claimant

Juliana Orina

41st Claimant

Rhoda Kwamboka

42nd Claimant

Selina Nyabonyi

43rd Claimant

Meshack Keinda Ondari

44th Claimant

Nemwel Ogechi

45th Claimant

James Nyabwanga

46th Claimant

Rael Otweka

47th Claimant

Laban Nyandege

48th Claimant

Nelson Mogeni

49th Claimant

Hannington Marube Akuna

50th Claimant

Mishael Omweno

51st Claimant

Penina Oseko

52nd Claimant

Dishon Makori

53rd Claimant

Gladys Miruka

54th Claimant

Joseph Momanyi

55th Claimant

Joyce Kerebi

56th Claimant

Joyce Ogechi

57th Claimant

Margaret Orina

58th Claimant

Mary Maobe

59th Claimant

Mary Mayaka

60th Claimant

Ondieki Nyandiri

61st Claimant

Elijah Kerongo

62nd Claimant

Onchweri Oyaro

63rd Claimant

Hesbon Onchari

64th Claimant

Nathan Onyango

65th Claimant

Nathan Onyango

66th Claimant

Hezron Motaro Onwong’a

67th Claimant

and

Ogembo Tea Factory Ltd

Respondent

Ruling

1. For the court’s attention is a motion dated June 29, 2022 by the claimants seeking orders:(1)That this honourable court be pleased to review, vary, or set aside part of its ruling delivered on February 16, 2022 denying the claimants interest on the sum of Kshs 18,672,257/- from the date of filing the claim until payment in full plus costs of the claim.(2)That this honourable court be pleased to award the claimants interest on the sum of Kshs 18,672,257/- at court rates from the date of filing the claim and costs of the claim to the claimants in tandem with the consent judgment recorded in court on October 22, 2010. (3)That costs of this application be in the cause.

2. The primary grounds in support of the motion were that the court did not award interest and costs to reflect the consent entered into by the parties on October 22, 2010, that the court only addressed its mind to the question of interest from March 30, 2020 and not from date of filing the cause, that the parties agreed to the payment of interest from the date of filing the cause in the consent of October 22, 2010, and that the failure to award the interest was an error apparent on the face of the record.

3. The respondent filed grounds of opposition on July 19, 2022.

4. In the grounds, it was asserted that the court lacked the jurisdiction to entertain the motion being functus officio, the claimants had approached the court with unclean hands, the question of interest and costs could only be properly be taken on appeal and that because execution had been commenced, the motion was an abuse of the court process.

5. Pursuant to court directions, the claimants filed their submissions on the motion on November 25, 2022 (should have been filed and served by October 14, 2022). The respondent’s submissions were not on record by the agreed timeline.

6. The court has considered the record, motion, affidavits, and submissions and come to the view that the motion should be declined for the following reasons.

7. One, in the judgment delivered on July 9, 2019, the court did not award any interest.

8. Two, similarly in the same judgment, the court directed each party to bear own costs of the suit.

9. This court, therefore, could not award interest on the sums which had not been ascertained by the time of the judgment.

10. Three, the court had, in the aforesaid judgment, directed the parties to compute and agree on the sums owing, but the parties did not agree until March 30, 2020, when the claimants signified the acceptance of the offer by the respondent.

11. Four, the interest and costs awarded by consent in Kisii High Court Civil Case No 17 of 2007 were specific to the sum of Kshs 4,181,720/-.

12. Five, failure by a court to award interest and costs is not an error apparent on the face of the record but is rather a matter which should be taken on appeal.

13. Lastly, the motion must have been an afterthought since the claimants only filed it after commencing the execution process.

Conclusion 14. For the above reasons, the court finds no merit in the motion, and it is dismissed with costs.

DELIVERED THROUGH MICROSOFT TEAMS, DATED AND SIGNED IN KISUMU ON THIS 30THDAY OF NOVEMBER 2022. RADIDO STEPHEN, MCIARBJUDGEAppearancesFor claimants Ondabu & Co AdvocatesFor Respondent Nyachiro Nyagaka & Co AdvocatesCourt Assistant Chrispo Aura