[2016] KEELRC 1797 (KLR)
The court found that the Claimant had demonstrated sufficient reason for review of the judgment, as the deduction of Kshs 88,190/- from the judgment sum was not justified; the amount was paid from the pension scheme and not by the Respondent. The Respondent's failure to respond to the motion or appear in court...
Source-derived case information.
- Citation
- [2016] KEELRC 1797 (KLR)
- Parties
- Claimant: Justus Mbaya; Respondent: Rivatex East Africa Ltd
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Cause 111 of 2013
- Procedural Posture
- Employment Cause / Ruling on Motion for Review of Judgment
- Outcome
- motion for review allowed
- Judges
- MSA Makhandia
- Legal Topics
- Unfair Termination, Review of Judgment, Certificate of Service, Statutory Employee Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Justus Mbaya
Claimant
Rivatex East Africa Ltd
Respondent
Procedural Posture
Employment Cause / Ruling on Motion for Review of Judgment
Legal Issues
- 1 Whether the deduction of Kshs 88,190/- from the judgment sum was proper.
- 2 Whether the Claimant is entitled to a certificate of service from the Respondent.
Ratio Decidendi
The court found that the Claimant had demonstrated sufficient reason for review of the judgment, as the deduction of Kshs 88,190/- from the judgment sum was not justified; the amount was paid from the pension scheme and not by the Respondent. The Respondent's failure to respond to the motion or appear in court further supported the Claimant's case. The court also reaffirmed the statutory right of the Claimant to receive a certificate of service from the Respondent upon termination of employment.
Court Disposition
motion for review allowed
Orders
- The Respondent shall pay the Claimant Kshs 88,190/- forthwith.
- The Respondent shall issue the Claimant with a Certificate of Service within 7 days of service of these orders.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAKURU
CAUSE NO. 111 OF 2013
JUSTUS MBAYA CLAIMANT
v
RIVATEX EAST AFRICA LTD RESPONDENT
RULING
In a judgment delivered on 13 June 2014, the Court granted a declaration that the termination of the Claimant’s employment was unfair and awarded him a total of Kshs 267,800/- less some unexplained Kshs 88,000/- that the Claimant had admitted receiving.
On 21 October 2015, the Claimant filed a motion seeking a review of the judgment with a view to ordering the Respondent to repay the Kshs 88,190/- which had been deducted from the judgment sum, and a certificate of service.
The motion was served upon the Respondent but it did not bother to file a response or appear during the hearing of the motion.
Annexed to the motion was a statement from Moi University Pension Scheme and also a bank statement demonstrating that the Kshs 88,190/- was payment from the pension scheme and not the Respondent.
With the failure by the Respondent to respond to the motion and after considering the explanations by the Claimant, the Court is satisfied that the Claimant has satisfied the test for review of judgment on the basis of sufficient reasons as provided for in rule 32 of the Industrial Court (Procedure) Rules, 2010.
The judgment is consequently reviewed with an order that the Respondent pays forthwith to the Claimant the said sum of Kshs 88,190/-.
The Claimant further lamented that the Respondent had not issued him with a Certificate of Service as ordered. A Certificate of Service is a statutory right of an employee, and the Respondent should issue one within 7 days of service of these orders, otherwise it risks being condemned for unfair labour practice.
No order as to costs.
Delivered, dated and signed in Nakuru on this 22nd day of January 2016.
Radido Stephen
Judge
Appearances
For Claimant Mr. Karanja instructed by Mirugi Kariuki & Co. Advocates
For Respondent Kalya & Co. Advocates (did not appear during motion)
Court Assistant Nixon