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ELRCDismissedCause No 9 of 2023· [2025] KEELRC 1414 (KLR)

Kenya Unio of Pre-Primary Education Teachers v County Public Service Board Kakamega County Government & 2 others; Salaries and Remuneration Commission (Interested Party) (Cause 9 of 2023) [2025] KEELRC 1414 (KLR)

Employment and Labour Relations Court
15 May 2025
2,771 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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The Employment and Labour Relations Court in Kakamega ruled it cannot change its final judgment on teachers' gratuity; a concluded case can only be revisited through review or an appeal.

What this practically means

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Executive summary

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By notice of motion dated 2nd December 2024, the claimant union sought orders compelling the respondents to compute gratuity payable under the judgment of 16th April 2024 based on the grievants' last basic salaries immediately before termination of their contracts in July 2022, and to compute gratuity for the entire contractual period less Ksh 200 monthly NSSF contributions. The respondents opposed through a replying affidavit of Dr. Boniface Okoth, contending that the court was functus officio, that the application sought to reopen the concluded cause by sneaking in unpleaded issues, and that the computation of 8th November 2024 complied with the judgment, which limited gratuity to the period 2015 to September 2020 at 31% based on the Vivien Ayuma formula. Counsel for the respondents cited Gladys Boss Shollei and George Boke Kisiawo on functus officio; the claimant's representative relied on Raila Odinga and Timsales. The court framed two issues: whether it was functus officio and whether the application was meritorious. It held that the application was neither a review, an appeal, nor an execution proceeding, and that under Rules 74 and 75 of the ELRC (Procedure) Rules 2024 the judgment could only be revisited by way of the slip rule or review. Finding the court functus officio and the application misconceived, the court dismissed the notice of motion with each party to bear its own costs. An earlier application dated 25th September 2024 was held abandoned and overtaken by events.

Key legal issues

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01

Whether the court is functus officio

Holding

Yes. The judgment of 16th April 2024 contained final substantive orders; the application was not a review, appeal, or execution proceeding, so the court cannot alter the gratuity computation period or formula.

Reasoning

The application cited Section 12 of the ELRC Act and Sections 1A & 3A of the Civil Procedure Act, none of which confers power to reopen a concluded judgment. Rule 75 permits only rectification of clerical mistakes and Rule 74 permits review on established grounds. No arithmetical slip was alleged. The claimant's real grievance — the applicable salary scale and period — was adjudicated in the judgment and can only be revisited on review or appeal.

p. 6
02

Whether the application is meritorious

Holding

It is not; the respondents' computation was said to be in accordance with the judgment and the claimant sought to extend gratuity to July 2022 contrary to the judgment's period of 2015 to September 2020.

Reasoning

The court found the judgment clear and specific: gratuity at 31% based on the Vivien Ayuma formula for contracts from 2015 to September 2020. The claimant's demand for computation based on last salaries as at July 2022 and for a longer period introduced matters neither pleaded nor determined in the cause, and could not be pursued by way of such an application.

p. 6

Legal principles established

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  • A court becomes functus officio once it has delivered final substantive judgment and may only revisit it via the slip rule or review under the ELRC Procedure Rules
  • Under the ELRC (Procedure) Rules 2024 there are only two instances in which a court may revisit its own judgment: rectification of clerical/arithmetic error (Rule 75) and review (Rule 74)

Court orders

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  1. 1.The notice of motion by the claimant dated 2nd December, 2024 is dismissed.
  2. 2.Each party to meet own costs.

Authorities

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Legislation

  • Employment and Labour Relations Court ActSection 12
  • Civil Procedure ActSections 1A & 3A
  • Constitution of KenyaArticle 35
  • Employment and Labour Relations Court (Procedure) Rules 2024Rules 74 and 75
  • Civil Procedure RulesExecution provisions (referred to generally)

Cases cited (4)

  • Kenya Building, Timber, and Furniture Industries Employees Union V Timsales Ltd
    (2023) eKLR
  • Gladys Boss Shollei V Judicial Service Commission & Another
    (2023) KESC 8 (KLR)
  • George Boke Kisiawo V Republic
    (2022) KEHC 1200 (KLR)
  • Raila Odinga V IEBC & Others
    (2013) eKLR
Jurisdiction invoked
Section 12 of the Employment and Labour Relations Court Act; Sections 1A & 3A of the Civil Procedure Act; Employment and Labour Relations Court (Procedure) Rules 2024

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, "Kenya Unio of Pre-Primary Education Teachers v County Public Service Board Kakamega County Government & 2 others; Salaries and Remuneration Commission (Interested Party) (Cause 9 of 2023) [2025] KEELRC 1414 (KLR)", Case Analysis (2025). Cause No 9 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1414/eng@2025-05-15

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