[2024] KEELRC 13224 (KLR)

Makau v DPL Festive Limited (Employment and Labour Relations Cause 612 of 2018) [2024] KEELRC 13224 (KLR) (25 November 2024) (Ruling)

Neutral citation: [2024] KEELRC 13224 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Nairobi

Employment and Labour Relations Cause 612 of 2018

JW Keli, J

November 25, 2024

Between

Gideon Maingi Makau

Claimant

and

DPL Festive Limited

Respondent

Ruling

1. The Respondent, aggrieved with the compensatory award in the Judgment delivered on 26. 08. 2024 by the Honourable Kebira Ocharo in this suit filed application by way of Notice of Motion dated 28th August 2024 under Section 16 of the Employment and Labour Relations Court Act, 2011; Rules, 45 (1),72(4),74(1)(a),(b) and (d) and (2) of the Employment and Labour Relations Court (Procedure) Rules, 2016 and all enabling provisions of the law seeking for the following orders:-i.Spentii.That this Honourable Court do order stay of execution of the Judgment delivered on 26. 08. 2024 by the Honourable Ocharo Kebira and any consequential orders made with regards to the award of compensation made pursuant to the provisions of Section 49 (1) (c) of the Employment Act, 2007 pending hearing and determination of this Application.iii.That this Honourable Court be pleased to review the judgment delivered on 26. 08. 2024 and the consequential orders made on the award of compensation made pursuant to the provisions of Section 49 (1) (c) of the Employment Act, 2007 to an extent of eight months gross salary.iv.That the Honourable Court be pleased to review its Orders awarding the Claimant herein Kshs.206,800/- being an equivalent of eight months salary as compensation for unfair and unlawful termination.v.That in place of such Orders, the Honourable Court be pleased to make a declaration that the Claimant is only entitled to compensation commensurate with the life of the fixed-term service contract and not more than that.vi.That the Honourable be pleased to issue such further orders as it may deem fit in the interest of justicevii.That there be no Orders for costs of this application.

2. The application was further supported by the affidavit of Sheila Obiayo dated 28th August 2024 and on general grounds inter alia:1. That the Claimant filed this suit on 27. 04. 2018 seeking that his dismissal from employment be found to be unfair and unlawful, payment of terminal dues, issuance of a certificate of service plus costs of the suit and interest.2. That the suit came up for inter-partes hearing and this Honourable Court rendered its decision on 26. 07. 2024 declaring the Claimant's dismissal from employment as unfair.3. That the Court further awarded the Claimant unpaid salary for April 2015 and 8days worked in May 2015 at Kshs. 32,743. 30/= and interest from 8th May 2015 till payment in full, Salary in lieu of notice Kshs. 25, 850/, compensation pursuant to section 49 (1) (c) of the Act for unfair termination Kshs. 206,800/, interest on other sums awarded from the date of judgment until settlement in full, costs of the suit and that the Claimant be issued with a Certificate of Service pursuant to the provisions of Section 51 of the Employment Act within 30 days of the judgment.4. That whilst the Honourable Court observed in the judgment that the Claimant was in a fixed term contract, the Honourable Court however in awarding the Claimant an equivalent of eight months' salary as compensation for unfair termination inadvertently did not consider the remainder period of the Claimant's employment which at the time of his termination stood at three (3) months.5. That the Honourable Court in the award of (8) months' salary as compensation erred in not noting that the Claimant, at the time of his dismissal, was only left with three (3) to the lapse of his employment contract.6. That the Claimant has since served the Respondent/Applicant's counsel with a decree and the letter dated 20. 08. 2024 with demands that the Respondent settles the same failure to which execution will issue.7. That the decree was obtained in violation to the provisions of Rule 72 (4) of the Employment and Labour Relations Court (Procedure) Rules and thus the need for stay of execution orders to protect the interests of the Respondent/Applicant.8. That the intended execution process is pre-mature as the costs as awarded to the Claimant are yet to be assessed by this Honourable Court.9. That no appeal has been preferred against the said judgment.10. That this application has been made without unreasonable and/or undue delay11. That in view of the foregoing, there is good and sufficient cause for the review of the judgment.12. That it is in the interest of justice, that the said Judgment be reviewed and varied as prayed.

3. The affidavit of Sheila Obiayo annexed as supporting evidence the trial court judgment dated 27th July 2024( ‘SOO 1’). The deponent stated that the advocate for the Claimant without due regard to the procedure under Rule 72(4) of the Employment and Labour Relations Court (Procedure) Rules 2024 had proceeded to serve the respondent’s counsel vide letter dated 20th August 2024 with a copy of the decree threatening execution proceedings(‘S00 2’ was the letter.

Response 4. The claimant in opposition to the application filed a replying affidavit dated 11th October 2024 where he averred that the court having considered the case on merit and delivered its verdict was now functus officio. That the claimant followed due process in extraction of the decree(annexed copy of the Decree as GM-2). The claimant stated that the applicant should appeal if dissatisfied with the judgment and the application was meant to delay his enjoyment of the fruits of the judgment.

Written submissions 5. The application as canvassed by way of written submissions. The applicant’s written submissions were drawn by the Federation of Kenya Employers and dated 1st November 2024. The respondent / claimant’s written submissions were drawn by Ngugi Mwaniki & Co. Advocates.

Decision Issues for determinationa.Whether the application for stay of execution is meritedb.Whether the application for review is merited.

Whether the application for stay of execution is merited 6. On this issue the grounds were that the Claimant had since served the Respondent/Applicant's counsel with a decree and the letter dated 20. 08. 2024 with demands that the Respondent settle the same failure to which execution will issue. That the decree was obtained in violation of the provisions of Rule 72 (4) of the Employment and Labour Relations Court (Procedure) Rules and thus the need for stay of execution orders to protect the interests of the Respondent/Applicant. That the intended execution process is pre-mature as the costs as awarded to the Claimant are yet to be assessed by this Honourable Court.

7. The applicant relied on rule 72 (4) of the ELRC (Procedure) Rules which states:- ‘’4) Any party to a suit may prepare a draft decree and submit it for approval by the other party to the suit, who shall approve it with or without amendment, or reject it, within seven days of service and if the draft is approved by the party, it shall be submitted to the Registrar who, if satisfied that it is drawn in accordance with the judgment, shall sign and seal the decree accordingly.’’ ‘

8. The applicant submits that they had not been served with the draft decree. This issue was not denied by the Respondent in his replying affidavit. In submissions the claimant submitted that the decree was regular as decree was drawn upon request by the claimant and relied on subsection 6 of the Rule to wit:-‘’(6) Notwithstanding sub-rules (4) and (5), the Registrar may, upon request by a trade union or litigant acting in person, draw, sign and seal a decree in accordance with the judgment.’’

9. This is a court of record. On perusal of the record the court returns that on the 26th July 2024 the advocates for the claimant Ngugi , Mwaniki & Co. wrote to the Deputy Registrar of the court to draw and supply them with the decree and a certificate of costs. Subsection 6 of Rule 74 only applies to litigants acting in person. This was not the case. The decree ought to have complied with Rule 72(4) of the rules.

10. The applicant asked the court to grant order of stay pending determination of the application to protect the substratum of the application. The applicant submits that there was unexplained delay as the application as filed upon commencement of execution and relied on decision in Mbogo Gatuiku v Attorney General where Justice Mwera held that even a delay of a day or two calls for an explanation.

11. The court finds there was no inordinate delay as the judgment was delivered on 26th July 2024 and the instant application filed on the 28th August 2024. The court finds the application was filed within reasonable time as stated in Rule 72 of the ELRC (Procedure) Rules 2024. The court finds it is in the interest of justice to preserve the status quo. The Order sought is however overtaken by events pursuant to this ruling in determination of the application.

Whether the application for review is merited. 12. The application is brought under Rule 74 of the ELRC (Procedure) Rules which states:-‘’74. (1)A person who is aggrieved by a decree or an order from which an appeal is allowed but from which no appeal is preferred or from which no appeal is allowed, may within reasonable time, apply for a review of the judgment or ruling—(a)if there is discovery of a new and important matter or evidence which, despite the exercise of due diligence, was not within the knowledge of that person or could not be produced by that person at the time when the decree was passed or the order made;(b)on account of some mistake or error apparent on the face of the record;(c)if the judgment or ruling requires clarification; or(d)for any other sufficient reason.(2)An application for review of a decree or order of the Court under sub-rule (1) shall be made to the judge who passed the decree or made the order sought to be reviewed or to any other judge if that judge is not attached to the Court station(3)A party seeking review of a decree or order of the Court shall apply to the Court by way of notice of motion supported by an affidavit and shall file a copy of the Judgment or decree or ruling or order to be reviewed.(4)The Court shall, upon hearing an application for review, deliver a ruling allowing or dismissing the application.(5)Where an application for review is granted, the Court may review its decision to conform to the findings of the review or quash its decision and order that the suit be heard again.(6) An order made for a review of a decree or order shall not be subject to further review.’’ The Civil Procedure Rules do not apply where the rules of the Court are in place.

13. Further, the applicant relied on the decision in Kenya Union of Hair and Beauty Salon Workers v Black Beauty Products Ltd; Kenya Scientific Research International& Technical Institutions Workers Union (Interested Party) (Cause 2145 of 2016) [2018] KEELRC 142 (KLR) (Employment and Labour) (7 December 2018) (Ruling) where the Judge O.N. Makau observed- ‘’ 19. The said power of review is discretionary and it is unfettered as it was held by the Court of Appeal in Shanzu Investment Ltd vs. the Commissioner of Lands, Civil Appeal No. 100 of 1993 [1993] eKLR, thus:“The court has a wide discretion to set aside judgment and there are no limitations and restrictions on the discretion of the judge except if the judgment is varied, it must be done on terms that are just’’.

14. The application is for review of the order of compensation in favour of the claimant in the judgment of equivalent of his 8 months’ last salary for unfair termination noting the award exceeds the reminder of the claimant’s fixed term contract which stood at 3 months. The trial court observed the claimant had a fixed contract. That the award of 8 months in view of remaining 3 months in the contract was an error on the face of the record. To buttress the foregoing the applicant relied on the decision in PAUL MWANIKI v NHIF Board Management (2020)e KLR where the Court held that the error or omission must be self-evidence and should not require an elaborative argument to be established. Also in Levi Outa v Uganda Transport (1995) HCB 340 where the court stated that the error must be so manifest and clear that no court would permit such an error to remain on the record. The Applicant submitted that the application raised such an error in the judgment.

15. Rule 74 is under section 16 of the Employment and Labour Relations Act, which provides for review of a decree or an order. It stipulates that:-“32(1)A person who is aggrieved by a decree or an order of the Court may apply for a review of the award, judgment or ruling-(a)if there is a discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the knowledge of that person or could not be produced by that person at the time when the decree was passed or the order made: or(b)on account of some mistake or error apparent on the face of the record, or(c)on account of the award, judgment or ruling being in breach of any written law; or(d)if the award, the judgment or ruling requires clarification: or(e)for any other sufficient reasons.”

16. The claimant submitted that the applicant ought to have appealed. Applications for review of decisions of the Court are not easy on the mind of a judge as observed by the Court of Appeal in Rift Valley Railways (Kenya) Ltd v Hawkins Wagunza Musonye & Desidery Tyson Otieno [2016] KECA 213 (KLR) where the court stated: ‘’ It is not an easy thing to persuade a judge and for a judge to actually find that his or her decision was wrong and in breach of the law. We are therefore not surprised at the outcome of that application. It is easier and less vexing for another Judge, if the one who made the order is no longer at the station, to find that the decision was contrary to the law. But even then questions abound as to whether that would not amount to sitting on appeal over a decision of another judge of co-ordinate jurisdiction. ‘’ Justice Ocharo Kebira rendered a reasoned decision on the compensation. I am however obliged as the Court of Appeal stated in that decision, the judge being no longer in the station, to sit on the application for review and decide whether or not to review the decision as requested.

17. The application is premised on the grounds of the existence of error on the face of the record as pleaded in the grounds of the applications as follows:- ‘’That the Court further awarded the Claimant unpaid salary for April 2015 and 8 days worked in May 2015 at Kshs. 32,743. 30/= and interest from 8th May 2015 till payment in full, Salary in lieu of notice Kshs. 25, 850/, compensation pursuant to section 49 (1) (c) of the Act for unfair termination Kshs. 206,800/, interest on other sums awarded from the date of judgment until settlement in full, costs of the suit and that the Claimant be issued with a Certificate of Service pursuant to the provisions of Section 51 of the Employment Act within 30 days of the judgment.That whilst the Honourable Court observed in the judgment that the Claimant was in a fixed term contract, the Honourable Court however in awarding the Claimant an equivalent of eight months' salary as compensation for unfair termination inadvertently did not consider the remainder period of the Claimant's employment which at the time of his termination stood at three (3) months.That the Honourable Court in the award of (8) months' salary as compensation erred in not noting that the Claimant, at the time of his dismissal, was only left with three (3) to the lapse of his employment contract.’’

18. The court reviewed the judgment and established as follows:- In paragraph 37 of the judgment the court found the parties were in agreement that the contract in question was for a fixed term contract from 1st August 2014 to 1st August 2015. In paragraph 56 the Judge held that the claimant was on off duty till 8th May 2015 which the court treated as the last day of work for purposes of award of unpaid salary. In paragraph 60 the court pronounced itself on the compensation for unfair termination. The court stated that it had considered, ‘’the length of period the claimant had worked, the period to work under his fixed term contract …….and came to the conclusion that the claimant is entitled to compensatory relief to an extent of 8 months gross salary.’’ (emphasis given)

19. Taking into account the findings of Trial Court in paragraphs 37 and 56 and the decision in paragraph 60 the Court holds that there is no error apparent on the face of the record. The court appreciates the reminder of the contract was less than the 8 months awarded but at the same time noted the Trial Court in paragraph 60 of the Judgment took into account the period the claimant was to work under the fixed contract. The Court returns that the Trial Court exercised its discretion under section 49 of the Employment Act which states:- ‘’(1) Where in the opinion of a labour officer summary dismissal or termination of a contract of an employee is unjustified, the labour officer may recommend to the employer to pay to the employee any or all of the following—(a)the wages which the employee would have earned had the employee been given the period of notice to which he was entitled under this Act or his contract of service;(b)where dismissal terminates the contract before the completion of any service upon which the employee’s wages became due, the proportion of the wage due for the period of time for which the employee has worked; and any other loss consequent upon the dismissal and arising between the date of dismissal and the date of expiry of the period of notice referred to in paragraph (a) which the employee would have been entitled to by virtue of the contract; or(c)the equivalent of a number of months wages or salary not exceeding twelve months based on the gross monthly wage or salary of the employee at the time of dismissal.’’ The court holds that it would be sitting on appeal to interfere with the exercise of the discretion of Judge of equal status to interfere with the award in the circumstances. That is a role a preserve of the Court of Appeal. The court in Nyamogo & Nyamogo v Kogo (2001)EA 170 on error on face of record noted that a mere error or wrong view is certainly no ground for review though it may be one for appeal. I uphold the decision to apply in the instant case to hold that the grounds raised are not for review though may be suitable for appeal.

20. In the circumstances the court finds no error apparent on the face of the record for review. If the decision was wrong the only remedy is to seek review on merit of the decision in paragraph 60 of the judgment. The application for order of review is declined. The court finds the prayer for stay of execution pending determination of the application is overtaken by events.

21. The application is dismissed for lack of merit for review with costs to the respondent.

22. It is so Ordered.

READ, DELIVERED AND SIGNED IN OPEN COURT AT NAIROBI THIS 25th DAY OF NOVEMBER, 2024. JEMIMAH KELIJUDGEIN THE PRESENCE OF:C/A- CalebApplicant / respondent - Okeche h/b ObiayoClaimant /Respondent – Gachomo