Reuwel Waithaka Gitahi & 2 others v Kenya Revenue Authority [2016] KEELRC 19 (KLR)
The bottom line
#KRA lost its bid to pause an employment judgment because it filed the wrong affidavit and misunderstood the court's order of re-engagement.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the application is fatally defective for attaching a supporting affidavit of a deponent other than the one named in the Notice of Motion
- 2.Whether a stay of execution of the judgment and orders of 30th May 2016 should issue pending the intended appeal in C.A. No. 141 of 2016
Key legal issues
#Defect in supporting affidavit
The mismatch between the named deponent (Kenneth Kirugi) and the attached affidavit (Crispine A Agata) undermined the application, though the Court considered sections 3 and 20 of the ELRC Act and Article 159 requiring due regard to substantive justice
Order 51 Rule 4 requires that an affidavit intended to be used be served with the motion. The Court held that where the motion names one deponent but another's affidavit is attached, the applicant's intention is negated and the foundation of the application is lost. A wrong statement of fact in an affidavit renders it worthless and may amount to perjury. However, the Court noted it must nonetheless move expeditiously to meet the ends of justice without undue regard to technicalities.
Distinction between reinstatement and re-engagement
The judgment of 30th May 2016 ordered re-engagement, not reinstatement; the applicant's grounds attacked an order of reinstatement which was never made
The Court drew a foundational distinction: reinstatement restores the same old job, while re-engagement gives the employer flexibility to place the employee in a new job within the establishment. Since Mr Agata's affidavit challenged reinstatement - an order not issued - the application misconceived the judgment. The re-engagement had already taken effect on 2nd June 2016, and the claimants were serving and due salary for work done.
Whether stay should issue pending appeal
Stay declined: the claimants were already constructively engaged in gainful employment and could be compensated in salary either way
The Court found no prejudice to the respondent: if the intended appeal succeeds, the claimants would simply be due salary for days worked; if the judgment is affirmed, there would be ongoing employment. The claimants were serving officers due pay for work done, which would suffice until the appeal is heard and determined. The merits of the intended appeal were not for this Court to determine.
Legal principles established
#- Where a notice of motion names a deponent of the supporting affidavit in its body but a different person's affidavit is attached, the core foundation of the application is lost
- A re-engagement is giving an employee another job with a former employer, while reinstatement is giving back the same/old job
Court orders
#- 1.Stay of the orders and judgment of 30th May 2016 shall not issue
- 2.Application dated 6th June 2016 declined
- 3.Costs shall be in the motion
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 162(2)(a) of the Constitution, section 12 of the Employment and Labour Relations Court Act and Rule 16 of the Industrial Court (Procedure) Rules, 2010
Relief refused
#Stay of execution of the judgment of 30th May 2016 pending the Court of Appeal application and intended appeal
The judgment ordered re-engagement, not reinstatement, which had already taken effect; no prejudice to the respondent was demonstrated
Costs
Costs shall be in the motion
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In conclusion, the stay of orders and judgement of 30 th May, 2016 shall not issue. Application dated 6th June, 2016 is hereby declined, save costs shall be in the motion.
A re-engagement is giving an employee another job with a former employer while a reinstatement is giving back the same/old job to the employee.
there is no such Supporting Affidavit, to attach any other Supporting Affidavit, the core foundation of the application is lost.
I find no prejudice to be suffered by the respondent, the claimants are constructively engaged in gainful employment with them
Issues in the judgment
#Application date stated inconsistently: the motion is described as dated 10th June 2016 in prayers, but the Court's disposition refers to it as dated 6th June 2016
The applicant is described as 'the respondent, Kenya Revenue Authority' although it moves the Court as applicant and the claimants as claimants; the Notice of Motion seeks setting aside of the judgment of 30th May 2016 but no such order was made in the disposition
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Reuwel Waithaka Gitahi & 2 others v Kenya Revenue Authority [2016] KEELRC 19 (KLR)", Case Analysis (2016). Application dated 6th June 2016 (arising from judgment of 30th May 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/19/eng@2016-12-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.