Gilbert Kiptoo Kipkoech, Joseph Orora Aera, Ngui Muindi, Fred G. Ondiek, Peter Kyalo, Peter Kipleting Omosa, Kennedy Simiyu Fwamba, Lawrence Bosire, Gideon Kemobi, Haron Monari Tinega, Ramashan Kimutai, Thomson Agri Mokaya, Duke Ombaki Kibera & Dickson Korir v Eldoret Grains Limited [2020] KEELRC 94 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT KISUMU

CAUSE NO. 227 OF 2013

GILBERT KIPTOO KIPKOECH............................1ST CLAIMANT/RESPONDENT

JOSEPH ORORA AERA.........................................2ND CLAIMANT/RESPONDENT

NGUI MUINDI..........................................................3RD CLAIMANT/RESPONDENT

FRED G. ONDIEK...................................................4TH CLAIMANT/RESPONDENT

PETER KYALO.......................................................5TH CLAIMANT/RESPONDENT

PETER KIPLETING OMOSA..............................6TH CLAIMANT/RESPONDENT

KENNEDY SIMIYU FWAMBA............................7TH CLAIMANT/RESPONDENT

LAWRENCE BOSIRE...........................................8TH CLAIMANT/RESPONDENT

GIDEON KEMOBI..................................................9TH CLAIMANT/RESPONDENT

HARON MONARI TINEGA...............................10TH CLAIMANT/RESPONDENT

RAMASHAN KIMUTAI......................................11TH CLAIMANT/RESPONDENT

THOMSON AGRI MOKAYA.............................12TH CLAIMANT/RESPONDENT

DUKE OMBAKI KIBERA.................................13TH CLAIMANT/RESPONDENT

DICKSON KORIR..............................................14TH CLAIMANT/RESPONDENT

VERSUS

ELDORET GRAINS LIMITED...............................RESPONDENT/APPLICANT

RULING

1. The judgment creditor filed an application for review of the judgment of the Court dated 6/12/2018. The application is dated 12/8/2019 and was filed on the even date about 11 months from the date of judgment. The decretal sum in favour of the Claimant/applicant is Kshs.1,345,976.

2. In its judgment the Court clearly stated that it would not grant an Order ofCosts in the matter. The Court was therefore deliberate on the its finding and this was not an omission and/or an error on the face of the record. The Court allowed interest on the decretal sum at 14% from the date of judgment.

3. The Court has a discretion to make an Order for costs or not provided thediscretion is exercised judiciously.

4. The Court considered the hefty award made to the Claimant as against therespondent and used its discretion not to award costs. This practice is not uncommon in the Employment and Labour Relations Court which has an equitable jurisdiction.

5. The Court has considered the rival arguments and submissions by theparties and is not persuaded that there is any justification to review its  judgment in terms of Rule 33(1) (a) – (d) Employment and Labour Relations Court (Procedure) Rules, 2016. The Claimant had opportunity to appeal the decision of the Court regarding costs but it did not.

6. The application lacks merit and is dismissed with no order as to costs.

Dated and delivered at Nairobi this 17th day of December, 2020.

MATHEWS N. NDUMA

JUDGE

ORDER

In view of the declaration of measures restricting court of 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.Kirwa for Claimant

Mr. Kigamwa for respondent

Chrispo: Court clerk