[2016] KEELRC 615 (KLR)
The court found that the claimant's application for review did not meet the threshold set out under Order 45 of the Civil Procedure Rules, as all matters raised could have been addressed at the original hearing with due diligence. Furthermore, the specific clauses of the CBA cited by the claimant—clause 17(b)...
Source-derived case information.
- Citation
- [2016] KEELRC 615 (KLR)
- Parties
- Applicant: Robert Kinyanjui Kanampiu; Respondent: Kionyo Tea Factory Company Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Cause 144 of 2015
- Procedural Posture
- Review Application / Ruling on Application for Review After Judgment
- Outcome
- application dismissed
- Judges
- B Ongaya
- Legal Topics
- Unfair Termination, Review of Judgment, Collective Bargaining Agreement, Severance Pay
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Robert Kinyanjui Kanampiu
Applicant
Kionyo Tea Factory Company Limited
Respondent
Procedural Posture
Review Application / Ruling on Application for Review After Judgment
Legal Issues
- 1 Whether the claimant is entitled to review of the judgment to include severance pay under clause 17(b) of the CBA.
- 2 Whether the claimant is entitled to payment for the period out of employment up to the date of judgment under clause 12(f) of the CBA.
- 3 Whether the application for review meets the threshold under Order 45 of the Civil Procedure Rules.
Ratio Decidendi
The court found that the claimant's application for review did not meet the threshold set out under Order 45 of the Civil Procedure Rules, as all matters raised could have been addressed at the original hearing with due diligence. Furthermore, the specific clauses of the CBA cited by the claimant—clause 17(b) regarding severance pay and clause 12(f) regarding payment for the period out of employment—were inapplicable to the claimant's circumstances. Clause 17(b) applies only in redundancy situations, which was not the case here, and clause 12(f) does not apply where the employee contributed to their own termination. As such, the application for review was dismissed and costs awarded to...
Court Disposition
application dismissed
Orders
- The claimant's application dated 26.09.2016 is dismissed.
- The claimant shall pay the respondent's costs of the application fixed at Kshs. 2,000.00.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF KENYA AT NYERI
CAUSE NO.144 OF 2015
ROBERT KINYANJUI KANAMPIU.......................................... CLAIMANT
VERSUS
KIONYO TEA FACTORY COMPANY LIMITED........................RESPONDENT
(Before Hon. Justice Byram Ongaya on Friday, 7th October, 2016)
RULING
The court delivered the judgment in the suit on 09. 06. 2016. The court entered judgment for the claimant against the respondent for:
1) The declaration that the termination of the claimant’s contract of employment by the respondent was unfair.
2) The respondent to pay the claimant Kshs. 172, 108. 00 by 01. 08. 2016 failing interest to be payable thereon from the date of the suit till full and final payment.
The respondent has already complied with the judgment and paid the claimant the entire judgment sum.
The claimant has filed on 26. 09. 2016 the notice of motion under order 45 of the Civil Procedure Rules. The claimant prays for review of the judgment to be awarded severance pay under clause 17(b) of the CBA and to be paid for the period he was out of employment up to the date of the judgment which found the termination was unfair and such payment being under clause 12(f) of the CBA. The application was based on the claimant’s supporting affidavit filed together with the application.
The respondent opposed the application by filing the replying affidavit of Grace Boher, the respondent’s accountant. The respondent’s case is that the claimant is introducing new matters which were not pleaded and which with due diligence should have been canvassed at the full hearing of the suit. The respondent has submitted that at all material times the CBA was available and nothing stopped the claimant from urging the matters in the application for review at the full hearing. Thus, it is submitted that the application fails to meet any of the established thresholds for grant of an application for review.
It was further submitted for the respondent that clause 12(f) of the CBA cannot apply because the court found that the claimant contributed to his own termination. Further, clause 17 (b) of the CBA would not apply because it provides for payment of severance pay in cases of redundancy.
The court finds that as submitted for the respondent, the claimant’s case fails to meet the threshold for grant of review because with due diligence, all the matters in the application would have been raised at the hearing of the suit. In any event, as submitted for the respondent, the cited clauses of the CBA would not aid the claimant’s case for review.
In conclusion the claimant’s application dated 26. 09. 2016 and filed on 26. 09. 2016 is hereby dismissed with orders that the claimant will pay the respondent’s costs of the application fixed at Kshs. 2, 000. 00.
Signed, datedanddeliveredin court atNyerithisFriday, 7th October, 2016.
BYRAM ONGAYA
JUDGE