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ELRCDismissedNot stated in the excerpt provided

Paul Billy Nyagilo v East African Portland & Cement Limited [2018] KEELRC 60 (KLR)

Employment and Labour Relations Court
20 December 2018
866 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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An employer who lost a gratuity dispute in Kenya's Employment Court failed because it tried to use review to do an appeal's job.

What this practically means

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Executive summary

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This was a ruling on the respondent employer's Notice of Motion dated 11.7.2018 seeking review, under sections 12(3), 16 and 20 of the ELRC Act and Rules 28(1) and 33 of the ELRC (Procedure) Rules 2016, of the judgment delivered on 26.1.2018 and the consequential orders of 8.6.2018 concerning the award of gratuity to the claimant. The respondent argued that under the CBA the claimant was disqualified from gratuity because he was allegedly summarily dismissed for misconduct, and that the orders of 8.6.2018 conflicted with the primary judgment. The claimant opposed, contending the application was an afterthought designed to reopen a concluded suit; no appeal had been preferred against the judgment or the ruling of 8.6.2018, which interpreted clause 21 of the CBA as requiring basic pay plus house allowance for computing gratuity. Makau J identified the sole issue as whether the threshold for review under Rule 33(1) was met. The court found the respondent had not candidly cited any review ground, that the grounds raised were best suited for an appeal, and that no appeal had been lodged against the impugned ruling. On the merits, the court held that the claimant's CBA contract was never terminated for misconduct but terminated on merits through promotion, upon which his gratuity right vested. The motion was dismissed with costs to the claimant.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the claimant has met the threshold for review of the judgment dated 26.1.2018 and the consequential order dated 8.6.2018

Key legal issues

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01

Whether the threshold for review under Rule 33(1) of the ELRC (Procedure) Rules 2016 was met

Holding

No. The respondent did not candidly cite any of the Rule 33(1) grounds; the grounds raised were appellate in nature and the motion was an afterthought filed only because the interpretation of clause 21 of the CBA went against the respondent, who never appealed.

Reasoning

The court set out the four grounds for review under Rule 33(1) and found the respondent had not invoked any of them specifically. The real grievance was with the ruling of 8.6.2018 interpreting clause 21 of the CBA, against which no appeal was preferred. Review could not substitute appeal, and the motion would not even have been filed had the ruling favoured the respondent.

p. 2
02

Whether the claimant remained entitled to gratuity despite the respondent's contention that he was disqualified by summary dismissal for misconduct under the CBA

Holding

Yes. The claimant's CBA contract was never terminated for misconduct or by summary dismissal; it was terminated on merits through promotion to management, whereupon the right to gratuity vested.

Reasoning

The court found as a fact that the claimant's contract under the CBA ended through promotion by the same respondent now resisting payment of gratuity. The right to gratuity vested the day the CBA contract was terminated and a fresh management appointment on different terms issued, so the alleged disqualification for summary dismissal did not arise.

p. 2

Legal principles established

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  • A party aggrieved by a ruling who did not appeal cannot circumvent the appellate route through an application for review; grounds raised in review that belong on appeal do not meet the Rule 33(1) threshold.
  • The right to gratuity under a CBA vests when the CBA contract is terminated and the employee is given a fresh appointment on different terms.

Court orders

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  1. 1.Dismissal of the respondent's Notice of Motion dated 11.7.2018 seeking review of the judgment of 26.1.2018 and the consequential orders of 8.6.2018
  2. 2.Costs of the application to the claimant

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Sections 12(3), 16 & 20 of the ELRC Act and Rules 28(1) & 33 of the ELRC (Procedure) Rules 2016

Relief refused

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Review of the judgment delivered on 26.1.2018 and the consequential orders made on 8.6.2018 on the award of gratuity

The application did not meet the threshold for review under Rule 33(1) of the ELRC (Procedure) Rules 2016; the grounds raised were best suited for an appeal and the motion was an afterthought

p. 2

Costs

Dismissed with costs to the claimant

Quotable passages

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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 view of the foregoing finding that the application has not met thethreshold for review as set out by Rule 33 (1) of this court’s rules of procedure, I dismiss the notice of motion dated 11.7.2018 with costs to the claimant.
p. 2Disposition - dismissal of the review application with costs
In my view, the right to gratuity under the CBA vested on the claimant the day the respondent terminated that contract under the CBA and gave him a fresh appointment as a management staff on different terms of service.
p. 2Vesting of gratuity rights on termination of CBA contract through promotion
She has however, set out on the body of the motion grounds which are best suited for an appeal.
p. 2Review grounds that are appellate in nature do not meet the review threshold

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Paul Billy Nyagilo v East African Portland & Cement Limited [2018] KEELRC 60 (KLR)", Case Analysis (2018). Not stated in the excerpt provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/60/eng@2018-12-20

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.