[2021] KEELRC 613 (KLR)
The court found that it had already considered the evidence of all 104 claimants in the original judgment and specifically excluded the 19 claimants from compensation due to insufficient evidence of unfair termination. The court held that the matter of compensation for these 19 claimants had already been...
Source-derived case information.
- Citation
- [2021] KEELRC 613 (KLR)
- Parties
- Applicant: John Elego & 103 Others; Respondent: Pressmaster Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 468 of 2013
- Procedural Posture
- Civil Appeal / Ruling on Application for Review of Judgment
- Outcome
- application dismissed with costs
- Judges
- MN Nduma
- Legal Topics
- Unfair Termination, Compensation for Termination, Review of Judgment, Class Action Claimants
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Elego & 103 Others
Applicant
Pressmaster Limited
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Review of Judgment
Legal Issues
- 1 Whether the court should review or vary its judgment dated 10th August, 2018 to include 19 claimants omitted from compensation for unfair termination.
- 2 Whether the evidence on record supports the inclusion of the 19 claimants in the compensation award.
- 3 Whether the court is functus officio regarding the issues raised in the application.
Ratio Decidendi
The court found that it had already considered the evidence of all 104 claimants in the original judgment and specifically excluded the 19 claimants from compensation due to insufficient evidence of unfair termination. The court held that the matter of compensation for these 19 claimants had already been conclusively determined, including through a prior application for review, and that the applicants were attempting to re-open issues that had been settled. The court further held that it was functus officio and lacked jurisdiction to revisit the merits of the case, as the proper avenue for challenge was by way of appeal, not a further application for review. Consequently, the application...
Court Disposition
application dismissed with costs
Orders
- The application dated 20th February, 2021 is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
34 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT NAIROBI
CIVIL APPEAL NO. 468 OF 2013
JOHN ELEGO & 103 OTHERS.................................................. APPLICANTS
VERSUS
PRESSMASTER LIMITED .......................................................RESPONDENT
RULING
1. In their application dated 20th February, 2021, the Claimants/Applicants pray for an order in the following terms:-
1. Spent
2. That the matter be placed before the Honourable Justice Nduma Nderi who heard and determined the claim, for hearing and determination of this application for review with regards to the judgment dated 10th August, 2018 to enable execution of the judgment.
3. That the Honourable Court considers the evidence already on record provided by the 19 claimants excluded from the Court’s judgment for their case of unfair termination and be pleased to make a determination of their case.
4. That this Honourable Court be pleased to vary and/or review the judgment dated 10th August, 2018 including paragraphs 42, 62, and 67 thereof in so far as it omits 19 claimants from receiving compensation from the Respondent for unlawful termination of employment.
5. Costs.
6. The application is premised on grounds set out on the face of the application and the supporting affidavit of one John Elego Navade, the 1st Claimant/applicant the gravamen of which is that the judgment of the Court dated 20/7/2018 omitted to consider the evidence of the 19 named claimants in respect of their alleged unlawful and unfair termination and therefore did not include them in the list of employees who were granted compensation for unfair and unlawful termination of employment.
7. That only employees who were terminated from employment on 3rd October, 2012 were awarded compensation.
8. That in the Court’s final analysis of the judgment at paragraph 84, the Court entered judgment in favour of all the claimants against the Respondent with no exclusion to any of them.
9. That the omission created ambiguity regarding the quantum of terminal dues that were due to the claimants hence the filing of two applications which were heard and determined by Maureen Onyango, J. on 20/12/2019 and 25/9/2020 which found that the 19 claimants were not entitled to compensation in terms of the judgment of the Court. That the applciation be allowed.
10. The application is opposed vide a replying affidavit of Harjinder Singh Panesar, a Director of the respondent who deposes that the judgment delivered on 20/7/2019 is clear and unequivocal that all the claimants except the 19 whose employment was terminated on diverse dates before 3rd October, 2012 were terminated unlawfully and unfairly and were each compensated by an equivalent of four (4) month’s salary each.
11. That the class suit filed by one John Elego on behalf of the 103 claimants was defended. The Court evaluated evidence adduced and found in favour of all other claimants except the 19 listed under paragraph 6 of the supporting affidavit.
12. That an applciation for the review of the judgment on this specific matter was heard and determined by Maureen Onyango, J. in a ruling delivered on 20th December, 2019 giving directions and clarity that computation of compensation is in respect of all other employees except the 19.
13. That the applicants want a second bite on the cherry on a matter that has already been determined by the trial Court and in an application for review by a different judge.
14. The Court is satisfied that it dealt with the class suit in respect of all the 104 claimants and upon consideration of evidence before it found that there was sufficient evidence tendered that all employees whose employment was terminated on 3rd October, 2012 were unlawfully and unfairly terminated.
15. The Court also found that the 19 claimants who were dismissed on various dates prior to the events of 3rd October, 2021 did not adduce sufficient evidence on record for the Court to find that each one of them were individually and severally, unlawfully and unfairly terminated. The Court excluded the 19 employees in respect of the specific award of compensation in clear and unequivocal terms.
16. This position was clearly put to light by Hon. Maureen Onyango, J. in her ruling delivered on 20th December, 2019
17. This Court is functus officioin respect of the issues raised herein which ought to have been properly raised in an appeal against the judgment of the Court and or against the ruling of Maureen Onyango, J. dated 20/12/2019.
18. The application lacks merit and it is dismissed with costs.
Dated and delivered at Nairobi (virtually) this 28th day of October, 2021.
Mathews N. Nduma
Judge
Appearances
Mr. Kanjama for Applicants
Mr. Oyatta for Respondent
Ekale – Court Assistant