[2020] KEELRC 713 (KLR)
The court found that the application for review was misconceived and lacked merit because the issues raised had already been determined in the judgment delivered on 12th July 2018, which was subsequently implemented through a consent order. The claimant failed to establish any of the grounds required for review...
Source-derived case information.
- Citation
- [2020] KEELRC 713 (KLR)
- Parties
- Applicant: Wilson Kitere; Respondent: The Board of Governors Friends Lugulu Mission Hospital
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Cause 327 of 2014
- Procedural Posture
- Employment Cause / Ruling on Application for Review and Adoption of Consent Order
- Outcome
- application dismissed with costs
- Judges
- MN Nduma
- Legal Topics
- Review of Judgment, Consent Orders, Certificate of Service, Res Judicata, Procedural Timeliness
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Wilson Kitere
Applicant
The Board of Governors Friends Lugulu Mission Hospital
Respondent
Procedural Posture
Employment Cause / Ruling on Application for Review and Adoption of Consent Order
Legal Issues
- 1 Whether the court should review its judgment delivered on 12th July 2018 in favour of the claimant.
- 2 Whether the consent order filed on 9/11/2018 should be adopted as an order of the court.
- 3 Whether the claimant is entitled to a certificate of service and additional salary for the period between termination and contract expiry.
Ratio Decidendi
The court found that the application for review was misconceived and lacked merit because the issues raised had already been determined in the judgment delivered on 12th July 2018, which was subsequently implemented through a consent order. The claimant failed to establish any of the grounds required for review under Rule 33(1) of the E&LRC (Procedure) Rules 2016, and the application was brought after an inordinate delay. The claim for additional salary was res judicata, and the certificate of service was already available for collection. The proper recourse for dissatisfaction with the judgment was an appeal, not a review. Accordingly, the application was dismissed with costs.
Court Disposition
application dismissed with costs
Orders
- The consent order filed on 9/11/2018 is adopted as an order of the court.
- The claimant's application dated 12/9/2019 is dismissed with costs.
Full Case Text
Judgment text and source record
35 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT KISUMU
CAUSE NO. 327 OF 2014
(Before Hon. Justice Mathews N. Nduma)
WILSON KITERE.............................................................................................................CLAIMANT
VERSUS
THE BOARD OF GOVERNORS FRIENDS LUGULU MISSION HOSPITAL.....RESPONDENT
RULING
1. The suit herein was heard and determined by the court in its Judgment delivered on 12th July 2018 in favour of the claimant/applicant.
2. Subsequently, a consent order signed by advocates for the parties was filed on 9/11/2018 in terms of which the decretal sum of Kshs. 1,142,84 was to be liquidated in installments.
3. The court is satisfied that the decretal sum was liquidated in terms of the consent order filed by the parties.
4. The claimant/applicant brought application dated 12th September 2019 more than one year upon delivery of the Judgment and subsequent to filing of consent order by counsel for parties seeking an order for review of the Judgment of the court in the following terms:-
a. That the respondent does issue a certificate of service to the applicant.
b. That the respondent shall pay the applicant salary for the period between the date of the wrongful termination of the contract to the date when the contract was to terminate in accordance with the terms of the employment contract in the sum of Kshs. 1,466,986.
5. The application is opposed by the respondent by a replying affidavit sworn on 3/12/2109 and filed on 4/12/2019. The respondents had earlier filed application dated 3/4/2019 seeking to have the consent filed by the parties on 9/11/2018 be adopted as an order of the court.
Determination
6. The filed application dated 3/4/2019 seeking to have the consent order adopted as an order of the court is to be adopted as a matter of course having been drawn signed and filed by counsel for both parties and no party has sought to annul it on any permissible ground. The consent order which has already been implemented is adopted as an order of the court as prayed by the parties.
7. As regards the Application dated 12/9/2019, the same is grossly misconceived because the applicant seeks to resuscitate issues that were heard and determined by the court in the Judgment delivered on 12th July 2018.
8. Furthermore, the application which was brought after inordinate delay has laid no basis in terms of Rule 33(1) of the E&LRC (Procedure) Rules 2016 to review its Judgment delivered on 12th July 2018, which Judgment has already been complied with fully in terms of the subsequent consent order.
9. The issue of the certificate of service has been clarified by the respondent that the same has already been drawn by the respondent and may be collected by the claimant at the office.
10. The issue of payment of salaries for days not worked between the date of termination of the contract and the date when the contract should have terminated is res judicata and cannot be revisited by the court.
11. If the claimant was dissatisfied with the award given by the court in its Judgment, the proper manner of dealing with the grievance was by way of filing an appeal to the Court of Appeal.
12. Accordingly, the application by the claimant/ Applicant lacks merit and is dismissed with costs.
Ruling Dated, Signed and Delivered at Nairobi this 16th day of July 2020.
Mathew N. Nduma
Judge
ORDER
In view of the declaration of measures restricting court operations due to the COVID-19 pandemic and in light of the directions issued by his Lordship, the Chief Justice on 15th March 2020, this ruling has been delivered to the parties online with their consent. They have waived compliance with Order 21 rule 1 of the Civil Procedure Rules which requires that all judgments and rulings be pronounced in open court. In permitting this course, this court has been guided by Article 159(2)(d) of the Constitution which requires the court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 18 of the Civil Procedure Act (chapter 21 of the Laws of Kenya) which impose on this court the duty of the court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes.
Mathews N. Nduma
Judge
Appearances:-
Mr. Ocharo for claimant/Applicant
Mr. Sifure for Respondent.
Chrispo: Court Clerk