Wilson Shivachi Mmaitsi v Managing Director School Equipment Production Unit (SEPU) [2018] KEELRC 1361 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF KENYA AT NAIROBI

CAUSE NO. 1115 OF 2014

WILSON SHIVACHI MMAITSI...................................CLAIMANT

- VERSUS -

THE MANAGING DIRECTOR SCHOOL

EQUIPMENT PRODUCTION UNIT (SEPU)........ RESPONDENT

(Before Hon. Justice Byram Ongaya on Friday 27th July, 2018)

RULING

The claimant filed the notice of motion on 10. 05. 2018 in person. The motion was under rule 1(1) (a) and (b) of Order 45 of the Civil Procedure rules 2010, Article 41(1) and (2) (a) of the Constitution and under any other provisions of the law. The claimant prayed for review of the judgment delivered by the Court on 20. 01. 2017 (Ndolo J) and awards the claimant Kshs. 261, 340. 00 for the unpaid salary during the period of interdiction i.e. from January 2010 to August 2013 at Kshs. 5, 250. 00 a month plus interest; and the respondent to pay costs of the application.

It was supported with the claimant’s affidavit attached thereto and upon the following grounds:

a) The Court found in the judgment that the claimant was not paid any salary during suspension and more significantly he was suspended and terminated in the same breach.

b) The law allows the review per order 45 rule 1(1) of the Civil Procedure Rules 2010.

c) The claimant feels that it is the duty of the Court to make an award for breach established by its findings in the judgment dated 20. 01. 2017.

d) Justice will be served if prayers sought are granted.

The respondent filed the replying affidavit of Perpetua Sidi Wanaswa. The respondent’s case was that the application for review was not made without unreasonable delay as it was made after unexplained lapsing of more than a year from the date of the judgment. Further there was no material before the court to justify the review.

The Court has considered the material on record and finds that the respondent’s concerns are valid. Further with due diligence the applicant ought to have raised the matter in the present application at the hearing of the suit. It is also clear that the application seeks an award consequential to the review but which was not before the Court at the time of the hearing because it was not pleaded. The Court returns that the application goes beyond the pleadings and the prayers that were before the Court at the hearing. The application will therefore fail. The Court finds that there is no established valid reason for review such as fresh evidence which was not available as at the time of the hearing, error apparent on record, or established manifest injustice in the circumstances of the case.

In conclusion, the application dated 25. 04. 2018 is hereby dismissed with costs.

Signed, dated and delivered in court at Nairobi this Friday 27th July, 2018.

BYRAM ONGAY

JUDGE