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ELRCDismissedNotice of Motion dated 23rd November 2020 (ELRC Petition review application)· [2020] KEELRC 43 (KLR)

Lilian W Mbogo-Omollo v Cabinet Secretary, Ministry of Public Service & another [2020] KEELRC 43 (KLR)

Employment and Labour Relations Court
17 December 2020
NMNzioki wa Makau
3,128 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~13 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to change a Kshs. 1 award in an employment case because the original judgment was clear and no proper review ground existed.

What this practically means

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Executive summary

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The Petitioner, Lillian W. Mbogo-Omollo, moved the Employment and Labour Relations Court by Notice of Motion dated 23rd November 2020 seeking review of the judgment of Radido J. delivered on 21st July 2020, in which the court declared that a Principal Secretary is entitled to Article 236 protections but awarded only nominal damages of Kshs. 1/- for violation of her right to due process, with each party bearing its own costs. She sought clarification and variation of the judgment on the basis of 'clarification' and 'any other sufficient reason' under Rule 33(1)(c) and (d) of the ELRC (Procedure) Rules, 2016, asking for adequate compensation, reinstatement to the payroll, remittance of withheld salary, and prohibitory orders against victimisation. She argued that since the Anti-Corruption Court proceedings (ACC Misc. No. 58 of 2018) had been appealed against in Civil Appeal No. 121 of 2020, the basis for nominal damages had shifted. The Respondents opposed, contending that no Rule 33 ground was made out, that the judgment was self-explanatory, that reinstatement would amount to unjust enrichment and contravene public policy, and noting that a Notice of Appeal had been filed. The court, Nzioki wa Makau J, held that Rule 33(2) permitted him to hear the review since Radido J. had left the station, but found the judgment unambiguous: nominal damages were deliberately awarded in light of the High Court finding that the Petitioner was a beneficiary of proceeds of crime. No Rule 33 ground having been established, the motion was dismissed with costs to the Respondents.

Key legal issues

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01

Whether grounds of 'clarification' and 'sufficient reason' under Rule 33(1)(c) and (d) were established

Holding

They were not; the judgment of Radido J. was clear and deliberate in awarding nominal damages given the High Court finding that the Petitioner was a beneficiary of proceeds of crime

Reasoning

The court examined the penultimate paragraphs of the judgment under review, noting the ELRC judge had considered Article 236 protections and consciously awarded nominal damages of Kshs. 1/- after finding the Petitioner was found by the High Court to be a beneficiary of proceeds of crime and was not informed of any appeal. Since the reasoning was explicit and unambiguous, there was nothing to clarify and no analogous sufficient reason justifying review.

p. 4
02

Which judge may hear a review under Rule 33(2)

Holding

Where the judge who passed the decree is no longer attached to the station, any other judge at the Nairobi Station may review it

Reasoning

Rule 33(2) requires the application to be made to the judge who passed the decree, or any other judge if that judge is not attached to the court station. Since Radido J. had left the station and was presiding elsewhere, the reviewing judge properly assumed jurisdiction.

p. 3

Legal principles established

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  • A judgment need not be reviewed for clarification where its language is unambiguous and no Rule 33 ground is established
  • Nominal damages are small damages awarded where the harm is technical rather than actual

Court orders

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  1. 1.The Petitioner's notice of motion dated 23rd November 2020 seeking review is dismissed
  2. 2.Costs of the application awarded to the Respondents
Jurisdiction invoked
Rule 33(1) and (2) of the Employment & Labour Relations Court (Procedure) Rules, 2016

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Lilian W Mbogo-Omollo v Cabinet Secretary, Ministry of Public Service & another [2020] KEELRC 43 (KLR)", Case Analysis (2020). Notice of Motion dated 23rd November 2020 (ELRC Petition review application). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/43/eng@2020-12-17

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