[2018] KEELRC 2255 (KLR)
The court found that there was a clear and material error in its ruling of 3rd February, 2017, where it erroneously reproduced the wording of clause 19 of the Service Agreement as 'in exceptional cases' instead of the correct phrase 'in exception of cases'. This misstatement led to an incorrect conclusion in the...
Source-derived case information.
- Citation
- [2018] KEELRC 2255 (KLR)
- Parties
- Claimant: David Mutava Mulwa; Respondent: African Medical and Research Foundation
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 414 of 2012
- Procedural Posture
- Review Application / Ruling on Application for Review of Ruling
- Outcome
- application for review allowed
- Judges
- DI Wasike
- Legal Topics
- Review of Judgment, Error on Face of Record, Employment Contract Interpretation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
David Mutava Mulwa
Claimant
African Medical and Research Foundation
Respondent
Procedural Posture
Review Application / Ruling on Application for Review of Ruling
Legal Issues
- 1 Whether there was an error apparent on the face of the record in the court's ruling of 3rd February, 2017 regarding the wording of clause 19 of the Service Agreement.
- 2 Whether the court should review and correct its earlier ruling to reflect the correct contractual language.
Ratio Decidendi
The court found that there was a clear and material error in its ruling of 3rd February, 2017, where it erroneously reproduced the wording of clause 19 of the Service Agreement as 'in exceptional cases' instead of the correct phrase 'in exception of cases'. This misstatement led to an incorrect conclusion in the earlier ruling. Upon comparing the versions of the Service Agreement attached to the claimant's memorandum of claim and the instant application, the court was satisfied that the correct contractual language was 'in exception of cases of resignation'. The error was apparent on the face of the record and directly impacted the interpretation of the contract. Accordingly, the court...
Court Disposition
application for review allowed
Orders
- The application dated 15th February, 2017 is allowed.
- The ruling of 3rd February, 2017 is reviewed to substitute 'in exceptional cases' with 'in exception of cases' in reference to clause 19 of the Service Agreement.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
ATNAIROBI
CAUSE NO. 414 OF 2012
DAVID MUTAVA MULWA..................................CLAIMANT
VERSUS
AFRICAN MEDICAL AND
RESEARCHFOUNDATION..........................RESPONDENT
RULING
By motion dated 15th February, 2017 the Respondent sought a review of the court’s ruling delivered on 3rd February, 2017 with respect to the provisions of clause 19 of the Service Agreement dated 27th day of September, 2002 to the extent that the word “exceptional” referenced at paragraph 11 thereof is substituted with words “exception of”.
This application was brought under Rule 33 of the court rules which empowers the court to review its judgment, rulings and orders on grounds among others, on account of some mistake or error apparent on the face of the record.
The court has compared clause 19 of the service Agreement dated 27th September, 2002 attached to the claimants memorandum of claim filed on 14th March, 2012 and the one attached to the instant application and it would seem clear that the correct wording of that clause in paraphrase reads as follows;
“In the event AMREF initiates termination of the contract before it’s expiry or decides not to review the contract on the grounds that your job ceases to exist in AMREF due to no fault of your own, and in exception of cases of resignation..”
This wording is completely different from the version reproduced in the ruling delivered on 3rd February, 2017 which erroneously lifted the words “in exceptional cases” instead of “in exception of cases”. This led to the conclusion the court reached in it’s ruling of 3rd February, 2017.
This is clear case which merits review with the consequence that the application dated 15th February, 2017 is hereby allowed with no order as to costs.
Dated at Nairobi this 2nd day of March 2018
Abuodha J. N.
Judge
Delivered at Nairobi this 2nd day of March 2018
In the presence of:-
……………....………..... for the claimant
……………………….. for the Respondent
Abuodha J. N.
Judge