Richard Kimeu Muthama v Systech Limited Kenya [2021] KEELRC 1438 (KLR)
The bottom line
#Kenya's Employment Court threw out Systech's attempt to overturn an unfair termination ruling, confirming that employers must choose between review and appeal, never both.
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 for review and setting aside of the judgment dated 17th September 2020 meets the conditions for review under Rule 33 of the ELRC (Procedure) Rules, 2016
- 2.Whether the court's finding that the claimant was not given a hearing before termination was an error apparent on the record justifying review
- 3.Whether the award of notice pay and service pay was erroneous given the claimant's 11 months of service and the respondent's payment of NSSF dues
- 4.Whether a party who opts for review while reserving an alternative prayer for stay of execution pending appeal is entitled to relief
- 5.Whether the alternative prayer for stay of execution pending appeal should issue
Key legal issues
#Whether an error apparent on the record existed to justify review
No error apparent on the record existed. The court had considered the witness statement of Kaguai Tabitha, the written submissions and the letters on poor performance, and had applied itself to the evidence and the law; its findings on hearing, notice pay and service pay involved application of law and evidence, which are matters of appeal rather than review.
The court reviewed paragraphs 10 and 11 of its judgment and found it had expressly considered the respondent's witness statement and the show-cause correspondence. Disagreement with the court's assessment or its application of section 35(5) of the Employment Act is a matter for appeal. Having rendered judgment, the court stood functus officio and no sufficient cause for review under Rule 33 of the ELRC (Procedure) Rules was demonstrated.
Whether the respondent could rely on Order 45 of the Civil Procedure Rules instead of the ELRC Court Rules
Review applications in the ELRC must invoke Rule 33 of the ELRC (Procedure) Rules, 2016; the Civil Procedure Act and Order 45, though similar, are not the correct provisions for this court.
The respondent anchored its application on sections 80 and 63(e) of the Civil Procedure Act and Order 45 Rules 1 and 2. The court held that although these provisions mirror Rule 33 of the Court Rules, an application for review before the ELRC must abide by Rule 33, and it is imperative to invoke the correct provisions applicable before that court.
Whether a mixed application for review, setting aside and stay pending appeal was competent
Such a 'mixed grill' application is an abuse of the process; a party must elect between review and appeal, and in any event no appeal or notice of appeal was on record to support the stay prayer.
Citing Gerald Kithu Muchanje and Martha Wambui, the court reaffirmed that one cannot exercise the right of appeal and apply for review of the same judgment simultaneously. The respondent's alternative prayer for stay pending appeal, combined with its primary prayer for review of the same judgment, forced the court to decline both, particularly absent any filed appeal.
Whether the procedural requirement of a hearing before termination for poor performance was satisfied
The court reaffirmed that section 41(1) of the Employment Act mandates that an employee facing termination for poor performance be given notice and a hearing; meetings about performance may not substitute the formal process unless the statutory requirements are met.
The court noted that meetings held with the claimant related to poor performance and not misconduct, and that a show-cause letter dated 29th March 2016 was issued. It maintained that an employee of poor work performance must be issued with notice and allowed a hearing at the shop floor in the presence of a representative of his choice, holding these provisions mandatory.
Legal principles established
#- A party must elect between review and appeal against the same judgment or decree; both remedies cannot be pursued simultaneously
- Review applications before the ELRC must be founded on Rule 33 of the ELRC (Procedure) Rules, 2016, not the Civil Procedure Rules
- Where a court has applied itself to the evidence and the law, it becomes functus officio and review is unavailable; a perceived misapplication of law is a ground of appeal, not review
- An employee terminated for poor performance must be issued with notice and accorded a hearing in the presence of a representative of his choice, as mandated by section 41(1) of the Employment Act
Court orders
#- 1.Application dated 5th October 2020 found without merit and dismissed
- 2.Costs of the application awarded to the claimant
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Rule 33 of the Employment and Labour Relations Court (Procedure) Rules, 2016, read with Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules (invoked by the applicant); the court held Rule 33 governs review before the ELRC
Relief refused
#Review and setting aside of the judgment dated 17th September 2020
The court had applied itself to the evidence and the law and stood functus officio; no error apparent on the record or sufficient cause for review was established
Direction that the matter be heard afresh by oral examination of witnesses
Parties had by consent on 23rd June 2020 agreed to proceed by written submissions and that consent was not faulted
Stay of execution of the decree pending appeal
The mixed application for review, setting aside and stay pending appeal was an abuse of process and no appeal or notice to appeal was on record
Costs
Application dismissed with costs to the claimant
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.
The court having applied itself to the evidence and the law, the court stands functus officio. A review is not available in this instance.
An application for review before this court must abide the provisions of Rule 33 of the Employment and Labour Relations Court (Procedure) Rules, 2016 (the Court Rules).
A mixed grill application for review, setting aside and stay of execution to allow for an appeal hearing and determination is in abuse of the process.
Accordingly, application dated 5th October, 2020 is hereby found without merit and is dismissed with costs to the claimant.
Issues in the judgment
#The applicant's counsel's name and the claimant's name are not stated in the judgment; parties are referred to only as 'the respondent' and 'the claimant'.
The judgment refers to 'section 421 of the Employment Act' in the applicant's grounds, which appears to be a typographical error for section 41.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Richard Kimeu Muthama v Systech Limited Kenya [2021] KEELRC 1438 (KLR)", Case Analysis (2021). Not stated in the judgment extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1438/eng@2021-05-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.