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ELRCDismissedNotice of Motion dated 23rd November 2020 (ELRC Petition, Nairobi)

Lilian W. Mbogo-Omollo v Cabinet Secretary Ministry of Public Service & Gender & another [2020] KEELRC 53 (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
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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The Employment Court refused to increase a Kshs. 1 award, confirming that disagreeing with a judge's decision is not a valid ground for review.

What this practically means

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Executive summary

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This is a ruling on a Notice of Motion dated 23rd November 2020 in which Lillian W. Mbogo-Omollo, the Petitioner in an employment and constitutional petition, sought review of the judgment of Radido J. delivered on 21st July 2020. The judgment had declared that a Principal Secretary is entitled to protections assured public officers under Article 236 of the Constitution but awarded only nominal damages of Kshs. 1/- for violation of her right to due process, with each party bearing its own costs. The Petitioner sought clarification and review on the ground of 'sufficient reason', arguing that the court had found her removal unconstitutional yet left her effectively empty-handed, and that proceedings before the Anti-Corruption Court initiated by the Assets Recovery Agency had since been appealed against in Civil Appeal No. 121 of 2020. The Respondents opposed, contending that no new and compelling matter existed, that the judgment was self-explanatory, and that reinstatement to the payroll would amount to unjust enrichment and double restitution. Nzioki wa Makau J. confirmed jurisdiction to hear the review under Rule 33(2) since the judge who delivered the judgment had left the station. He held the judgment required no clarification, being unambiguous, and that nominal damages were appropriate given the High Court's finding that the Petitioner was a beneficiary of proceeds of crime. No ground under Rule 33 was invoked. The motion was dismissed with costs to the Respondents.

Questions the Court framed

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

  1. 1.Whether the decision of Radido J. of 21st July 2020 requires clarification under Rule 33(1)(c) of the ELRC (Procedure) Rules, 2016
  2. 2.Whether there is any other sufficient reason under Rule 33(1)(d) to warrant review of the judgment and the award of nominal damages of Kshs. 1/-

Key legal issues

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01

Whether the judgment of Radido J. required clarification under Rule 33(1)(c)

Holding

The court held the decision was unambiguous and required no clarification; the Learned Judge had considered Article 236 protections and rendered a clear verdict awarding nominal damages.

Reasoning

The court read the decision of Radido J. and found it expressed in clear and unambiguous language: the Petitioner's removal was unconstitutional but, having been found by the High Court to be a beneficiary of proceeds of crime, she was awarded nominal damages of Kshs. 1/-. Because the judgment was self-explanatory, the ground of clarification under Rule 33(1)(c) was not available.

p. 4
02

Whether the Petitioner demonstrated any other sufficient reason for review under Rule 33(1)(d)

Holding

No sufficient reason analogous to the recognised grounds of review was demonstrated; the motion was dismissed.

Reasoning

Relying on authority that 'any other sufficient reason' must be analogous to discovery of new matter or error apparent on the face of the record, the court found the Petitioner's grievance with the award of nominal damages amounted to a disagreement with the exercise of discretion, not a recognised ground of review. No ground under Rule 33 was invoked.

p. 4

Legal principles established

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  • Nominal damages are very small damages awarded to show that the loss or harm suffered was technical rather than actual
  • A review for clarification or any other sufficient reason must be analogous to the grounds of discovery of new matter or error apparent on the face of the record

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

The bench

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

NM
majority

Wrote the judgment

Jurisdiction invoked
Rule 33(1) and (2) of the Employment & Labour Relations Court (Procedure) Rules, 2016

Relief refused

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Review and variation of the judgment of 21st July 2020 setting aside the nominal damages of Kshs. 1/- and substituting adequate compensation

The judgment is unambiguous and no ground under Rule 33 was invoked

p. 4

Conservatory orders restraining the Respondents from victimising the Petitioner or removing her from the payroll

Application for review dismissed

Reinstatement of the Petitioner to the payroll and remittance of withheld salary and benefits

Application for review dismissed

Prohibitory order restraining adverse action against the Petitioner without due process under Article 236

Application for review dismissed

Costs

Costs of the application awarded to the Respondents; the underlying judgment of Radido J. had ordered each party to bear its own costs.

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.

Rather than being compensatory, damages may instead be nominal which are very small damages awarded to show that the loss or harm suffered was technical rather than actual.
p. 4Nature of nominal damages
any other sufficient reason for the purposes of review refers to grounds analogous to the other two (for example error on the face of the record and discovery of new matter
p. 2Meaning of 'any other sufficient reason' for review
there is no basis for my interference with the decision as no ground under Rule 33 has been invoked to warrant the review sought. I therefore decline to review the decision and dismiss the Petitioner's notice of motion with costs to the Respondents.
p. 4Final orders - dismissal of review
In terms of Rule 33(2), the Judge who passed the Judgment left the Court Station and is presently presiding over another Station of this Court. In the premises, the decision can be reviewed by any other Judge at the Nairobi Station.
p. 3Competent forum for review under Rule 33(2)

Issues in the judgment

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minor

The judgment refers inconsistently to the date of the decision under review - described as 'Judgment dated 21st July 2020', 'delivered by Radido J. on 15th October 2020' and 'decision of 20th October 2020'

minor

The names of the Respondents are not stated in the judgment; they are referred to only collectively

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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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 & Gender & another [2020] KEELRC 53 (KLR)", Case Analysis (2020). Notice of Motion dated 23rd November 2020 (ELRC Petition, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/53/eng@2020-12-17

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