[2016] KEELRC 1596 (KLR)
The Court found that the Respondent failed to exercise due diligence in retrieving and presenting the pay slips and muster rolls during the trial, despite having sufficient notice and time. The alleged new evidence was not truly unavailable at the time of trial, and the Respondent's explanation for late production...
Source-derived case information.
- Citation
- [2016] KEELRC 1596 (KLR)
- Parties
- Claimant: Benson Owino Odongo; Respondent: Menengai Oil Refinery Ltd
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Cause 392 of 2014
- Procedural Posture
- Review Application / Ruling on Application for Review of Judgment
- Outcome
- application for review dismissed with costs to the claimant
- Judges
- MSA Makhandia
- Legal Topics
- Review Jurisdiction, Overtime Claims, Discovery of New Evidence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Benson Owino Odongo
Claimant
Menengai Oil Refinery Ltd
Respondent
Procedural Posture
Review Application / Ruling on Application for Review of Judgment
Legal Issues
- 1 Whether the Respondent established grounds for review of the overtime award based on new evidence or misapprehension of facts.
- 2 Whether the Respondent exercised due diligence in producing relevant documents at trial.
- 3 Whether the alleged payment of overtime and employment status of the Claimant for the disputed period warranted review.
Ratio Decidendi
The Court found that the Respondent failed to exercise due diligence in retrieving and presenting the pay slips and muster rolls during the trial, despite having sufficient notice and time. The alleged new evidence was not truly unavailable at the time of trial, and the Respondent's explanation for late production was inadequate. The Court further held that any complaints regarding misapprehension of facts, such as the Claimant's employment status during the disputed period, were already addressed in the judgment and would be more appropriately raised on appeal rather than through review. Consequently, the application for review did not meet the threshold under Rule 32 of the Industrial...
Court Disposition
application for review dismissed with costs to the claimant
Orders
- The application for review is dismissed.
- The Respondent shall pay costs of the application to the Claimant.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT NAKURU
CAUSE NO. 392 OF 2014
BENSON OWINO ODONGO.....................................................CLAIMANT
v
MENENGAI OIL REFINERY LTD.........................................RESPONDENT
RULING
1. After hearing testimonies from both sides, the Court delivered a judgment on 30 October 2015. Among the heads of relief awarded to the Claimant was Kshs 334,439/95 on account of overtime.
2. This head of relief aggrieved Menengai Oil Refinery Ltd (Respondent) and on 4 December 2015, it filed an application for review of that portion of award.
3. On 4 December 2015, the Court stayed execution of that part of the judgment pending inter partes hearing on 8 December 2015. The Court granted stay of execution pending review on condition that the Respondent deposited Kshs 200,000/- into Court. That order was complied with on 15 January 2016, instead of before 15 December 2015 as directed by the Court.
4. The review application was taken on 1 February 2016.
5. The review jurisdiction of this Court is founded upon the provisions of rule 32 of the Industrial Court (Procedure) Rules, 2010 and it is wider than the jurisdiction given to the High Court under the Civil Procedure Rules.
6. The reasons advanced by the Respondent for seeking the review are that the Claimant was paid all overtime worked for, and that the muster rolls for some of the periods in respect of which the overtime were claimed showed the Claimant did not work overtime.
7. The Respondent also contended that the Claimant even claimed overtime for March 2014 when he was actually not in employment.
8. It appears, though the Respondent did not expressly contend so, that the application for review is anchored on discovery of new information or matter of evidence which was not available to it by the time of trial and misapprehension of the facts by the Court.
9. The Respondent annexed to the application pay slips and muster rolls for the periods in contention and it explained away the failure to produce these documents earlier on at the trial to the fact that the documents had been archived (new information/evidence).
10. The Respondent was aware as it was put on notice in September 2014 when the Memorandum of Claim was served upon it that the Claimant was seeking overtime from the period 2007 to July 2014.
11. In my view, had the Respondent exercised due diligence it should have retrieved the pay slips and muster roll for the relevant period and placed the same before Court to challenge and or controvert the Claimant’s head of claim on overtime. It had more than sufficient time to do so.
12. On the reason advanced that the Claimant sought and was granted overtime pay for a period he was no longer in the employment of the Respondent (misapprehension of facts), the Court notes that the Respondent had pleaded that the Claimant had deserted employment on 31 March 2014.
13. The Court examined the question of overtime at paragraphs 27 to 30 of the judgment and is of the view that any complaints on the same would be better resolved on appeal rather than on review.
14. The Court consequently dismisses the application for review with costs to the Claimant.
Delivered, dated and signed in Nakuru on this 7th day of March 2016.
Radido Stephen
Judge
Appearances
For Claimant Ms. Kerubo instructed by Korongo & Co. Advocates
For Respondent Mr. Ambenge, Senior Executive Officer, Federation of Kenya Employers
Court Assistant Nixon