[2015] KEELRC 881 (KLR)
The court found that there was no error apparent on the face of the record because the claimant ceased employment on 23.6.2012. The overtime computation was correctly limited to the period of actual employment, not up to October 2013 as claimed. The reference to October 2013 in the judgment related to the limitation...
Source-derived case information.
- Citation
- [2015] KEELRC 881 (KLR)
- Parties
- Applicant: Ali (Alias) Alvin Safari Ngala; Respondent: Glory Car Hire Tours & Safaris Mombasa Ltd
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Cause 335 of 2013
- Procedural Posture
- Review Application / Ruling on Application for Review of Judgment
- Outcome
- application dismissed with costs
- Judges
- AN Makau
- Legal Topics
- Overtime Computation, Error Apparent on Record, Review of Judgment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ali (Alias) Alvin Safari Ngala
Applicant
Glory Car Hire Tours & Safaris Mombasa Ltd
Respondent
Procedural Posture
Review Application / Ruling on Application for Review of Judgment
Legal Issues
- 1 Whether there is an error apparent on the face of the record regarding the computation of overtime awarded to the claimant.
- 2 Whether the claimant is entitled to overtime pay for the period after cessation of employment.
Ratio Decidendi
The court found that there was no error apparent on the face of the record because the claimant ceased employment on 23.6.2012. The overtime computation was correctly limited to the period of actual employment, not up to October 2013 as claimed. The reference to October 2013 in the judgment related to the limitation period for filing the suit, not the period for which overtime was payable. The application for review was therefore without merit, as the claimant was not entitled to overtime for periods after his employment ended.
Court Disposition
application dismissed with costs
Orders
- The Notice of Motion dated 26.3.2015 is dismissed with costs.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE INDUSTRIAL COURT
AT MOMBASA
CAUSE NO. 335 OF 2013
ALI (ALIAS)ALVIN SAFARI NGALA..................................................CLAIMANT
VERSUS
GLORY CAR HIRE TOURS & SAFARIS MOMBASA LTD...................RESPONDENT
RULING
INTRODUCTION
The Claimant has filed the Notice of Motion dated 26. 3.2015 seeking to review of the Judgment of this court dated 13. 2.2015. The ground upon which the motion is brought is that there is an error apparent on the face of the record related to the computation of the overtime awarded under paragraph 23 of the Judgment.
The Motion is supported by the affidavit sworn by the Claimant on 26. 3.2015. The gist of the Affidavit is that the court awarded overtime for the period between October 2010 and October 2013 but computed the award of overtime for the period between October 2010 and 23. 6.2012. According to him that is an error apparent on the face of record which should be corrected by computing his award for the period upto October 2013 which is 37 months (3848 hours) and not the 21 months (2184 hours) used by the Court in awarding him kshs. 94,521. 70.
The Respondent has opposed the motion by her Replying Affidavit sworn on 14. 4.2015. The gist of the Respondent's affidavit is that the Claimant Ceased working for her on 23. 6.2012 and as such he cannot lawfully claim overtime for the period he did not work.
ANALYSIS AND DETERMINATION
The issue for determination herein is whether there is an error apparent on the face of the record. The Court agrees with the Respondent that the Claimant ceased to work from 23. 6.2012 and not October 2013. He cannot therefore be compensated for no work done. What the court meant under paragraph 23 of the Judgment was that the limitation period was in reference to October 2013 when the suit was filed. That is why the court went back 3 years to October 2010 in compliance with Section 90 of the Employment Act. That interpretation is simple and it required only common sense. The motion is therefore bereft of merits as no error apparent on the face of the record was proved. The motion by the Claimant is therefore an embarrassment to the court, frivolous, vexations and abuse of the process of the court. Any other finding would only be permitting the Claimants' unquenchable greed for unfair enrichment. That cannot possibly happened before this court.
DISPOSITION
For the reasons stated above, the Notice of Motion dated 26. 3.2015 is dismissed with costs.
Dated, signed and delivered this 19th day of June 2015.
O. N. Makau
Judge