Case ID:169294

Fredrick Jacob Ochieng Obura & 7 others v Kisumu Municipal Council & another [2021] eKLR

Case Metadata

Case Number:

Cause 75 of 2013

Parties:

Fredrick Jacob Ochieng Obura, Joseph Dida, Alphonse Luke Kitechi, Edward Agola, Joshua O. Nyamwaya, Martin Ogada, Tom Ogalo & Aggrey Awuonda v Kisumu Municipal Council & Kisumu Water & Sewerage Co

Date Delivered:

27 Jan 2021

Case Class:

Civil

Court:

Employment and Labour Relations Court at Kisumu

Case Action:

Ruling

Judge(s):

Radido Stephen Okiyo

Citation:

Fredrick Jacob Ochieng Obura & 7 others v Kisumu Municipal Council & another [2021] eKLR

Advocates:

Mwamu & Co. Advocates for the Claimants

Otieno, Ragot & Co. Advocates for the 1st Respondent

Ouma Njoga & Co. Advocates for the 2nd Respondent

Court Division:

Employment and Labour Relations

County:

Kisumu

Advocates:

Mwamu & Co. Advocates for the Claimants

Otieno, Ragot & Co. Advocates for the 1st Respondent

Ouma Njoga & Co. Advocates for the 2nd Respondent

Case Outcome:

Application dismissed with no order on costs

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT KISUMU

CAUSE NO. 75 OF 2013

FREDRICK JACOB OCHIENG OBURA........................1

st

CLAIMANT

JOSEPH DIDA.................................................................2

nd

CLAIMANT

ALPHONSE LUKE KITECHI...........................................3

rd

CLAIMANT

EDWARD AGOLA............................................................4

th

CLAIMANT

JOSHUA O. NYAMWAYA...............................................5

th

CLAIMANT

MARTIN OGADA.............................................................6

th

CLAIMANT

TOM OGALO..................................................................7

th

CLAIMANT

AGGREY AWUONDA.....................................................8

th

CLAIMANT

VERSUS

KISUMU MUNICIPAL COUNCIL.............................1

st

RESPONDENT

KISUMU WATER & SEWERAGE CO.......................2

nd

RESPONDENT

RULING

1. The Court delivered judgment in favour of the Claimants on 22 September 2017. The Court found that the retirement of the Claimants were premature and each one of them was awarded maximum compensation. The 2

nd

Respondent was also directed to pay the costs.

2. On 6 February 2020, the Claimants filed a Motion under a certificate of urgency seeking review of the judgment to include interest at the rate of 30%.

3. According to the Claimants, the failure by the Court to award interest was a

slip

by the judge and did not put into consideration the provisions of sections 26, 27 and 99 of the Civil Procedure Act.

4. The Claimants asserted that they only became aware of the

slip

when they moved to execute the judgment and that in any case, costs and interest followed the event.

5. The Court’s attention was drawn to case law.

6. The 2

nd

Respondent filed Grounds of Opposition to the Motion on 10 March 2020 wherein it raised an objection on the ground of inordinate delay in filing the application.

7. It was also contended that the Court was

functus officio

and the only route available to the Claimants was through an Appeal.

8. Pursuant to Court orders on 10 November 2020, the Claimants filed their submissions on 30 November 2020 (the same should have been filed/served on or before 17 November 2020). The Respondents submissions were not on file by the agreed timeline of 24 November 2020.

9. The Court has considered the Motion, affidavits, Objections and the submissions on record.

10. According to the Claimants, the failure to award interest was an error apparent on the face of the record in light of the statutory provisions on interest and the case law emanating therefrom.

11. It took the Claimants over two and a half years to move the Court. The apparent explanation was that it was only at execution that they became aware of the omission.

12. The Court does not find the explanation, nay, excuse valid. It beats logic why a successful party would sit out execution of judgment for that long where they had the benefit of legal counsel. There is even no evidence on the file that a decree was extracted and issued. The delay was inordinate.

13. The next question is whether a failure to award interest would amount to an error apparent on the face of the record in light of the provisions of sections 26 and 27 of the Civil Procedure Act.

14. This Court does not think so. The proviso gives the Court a discretion. And where a discretion is not exercised or is exercised wrongly, that, in the view of this Court would not amount to an error apparent on the face of the record.

15. What a party dissatisfied with the wrong exercise or failure to exercise a discretion is to prefer an Appeal to challenge the legality of the exercise of the discretion.

16. The Court finds no merit in the Motion and it is dismissed with no order on costs.

Delivered through Microsoft teams, dated and signed in Kisumu on this 27

th

day of January 2021.

Radido Stephen, MCIArb

Judge

Appearances

For Claimants Mwamu & Co. Advocates

For 1

st

Respondent Otieno, Ragot & Co. Advocates

For 2

nd

Respondent Ouma Njoga & Co. Advocates

Court Assistant Chrispo Aura