[2017] KEELRC 1903 (KLR)
The Court found that the Respondent failed to demonstrate that the pay slips showing payment of house allowance constituted new and important evidence that could not have been produced at the original hearing with due diligence. The Respondent merely stated that payroll was outsourced but did not explain any actual...
Source-derived case information.
- Citation
- [2017] KEELRC 1903 (KLR)
- Parties
- Claimant: Dickson Matingi; Respondent: DB Schenker Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 1537 of 2014
- Procedural Posture
- Review Application / Ruling on Application for Review of Award
- Outcome
- application dismissed with costs to the claimant
- Judges
- L Ndolo
- Legal Topics
- Review of Judgment, New Evidence, House Allowance, Compensation Award
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Dickson Matingi
Claimant
DB Schenker Limited
Respondent
Procedural Posture
Review Application / Ruling on Application for Review of Award
Legal Issues
- 1 Whether the Respondent has met the threshold for review of the Court's award based on discovery of new evidence.
- 2 Whether the pay slips showing payment of house allowance constitute new and important evidence not previously available with due diligence.
- 3 Whether an alleged error in the rate of house allowance applied by the Court is reviewable or only appealable.
Ratio Decidendi
The Court found that the Respondent failed to demonstrate that the pay slips showing payment of house allowance constituted new and important evidence that could not have been produced at the original hearing with due diligence. The Respondent merely stated that payroll was outsourced but did not explain any actual difficulty in obtaining the documents. The Court emphasized that the review jurisdiction is not intended to allow parties to fix their cases after judgment. Furthermore, any alleged error in the rate of house allowance applied by the Court is not reviewable but appealable. Consequently, the application for review did not meet the legal threshold and was dismissed with costs to...
Court Disposition
application dismissed with costs to the claimant
Orders
- The Respondent's application dated 15th August 2016 is dismissed with costs to the Claimant.
Full Case Text
Judgment text and source record
35 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI
CAUSE NO 1537 OF 2014
DICKSON MATINGI ……………………………...…….CLAIMANT
VS
DB SCHENKER LIMITED……………..…….….….RESPONDENT
RULING
1. On 8th July 2016, I gave an award in favour of the Claimant in the following terms:
a) 12 months’ salary in compensation………………………………….Kshs. 212,544
b) 1 month’s salary in lieu of notice………………………………………….……17,712
c) House allowance for 170 months……………………………………….....…510,000
2. The Respondent subsequently filed an application for review on the ground that new evidence to the effect that the Claimant received house allowance while in the Respondent’s employment had been discovered.
3. In the Memorandum in support of its application, the Respondent states that it had outsourced its payroll management to Comprite Kenya Limited who had produced pay slips showing that the Claimant was paid house allowance while in the service of the Respondent.
4. Regarding the rate of house allowance in the years preceding the employment contract of 2011, the Respondent states that it ought to be 15% of his basic pay of Kshs. 11,712.
5. The Claimant filed a reply on 23rd August 2016. He states that the matter herein went through a fair hearing where the parties presented their case and the Court made its decision based on the evidence that was produced.
6. The Claimant further states that the new information on which the Respondent seeks to rely has always been in the Respondent’s knowledge. Additionally no reason has been advanced as to why the subject pay slips and contract were not presented to the Court during the hearing.
7. The power of the Court to review its own decision is donated by Section 16 of the Employment and Labour Relations Court Act and Rule 33 of the Procedure Rules. Rule 33(1) provides as follows:
(1) A person who is aggrieved by a decree or an order of the Court may apply for a review of the award, judgment or ruling-
(a) if there is discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the knowledge of that person or could not be produced by that person at the time when the decree was passed or the order made; or
(b) on account of some mistake or error apparent on the face of the record; or
(c) on account of the award, judgment or ruling being in breach of any written law; or
(d) if the award, judgment or ruling requires clarification;or
(e) for any other sufficient reasons.
8. The Claimant’s application is premised on Rule 33(1)(a) which allows admission of new evidence that could not be availed to the Court even upon the exercise of due diligence. The operative phrase under this sub rule is ‘the exercise of due diligence’.
9. Counsel for the Claimant referred the Court to the decision by Gikonyo J in Salama Mahmoud Saad v Kikas Investments Limited [2014] eKLRin which the learned Judge held that the discovery of new and important evidence does not automatically entitle a party to an order for review. The party must show that the new evidence was not within their knowledge in the first place. I understand this to be the correct position on this matter.
10. Apart from its statement that it had outsourced its payroll management to Comprite Kenya Limited, the Respondent did not tell the Court the difficulties it had in procuring the pay slips showing that the Claimant had been paid house allowance. The provision for review is not meant to aid a party to fix their case post judgment which is what the Respondent seeks to do.
11. Regarding the rate of house allowance applied by the Court in respect of the period preceding the employment contract of 2011, the only thing I will say is that if the Court made an error, that error would fall within the realm of misapprehension of law and fact which cannot be the subject of review. Such an error can only be corrected on appeal
12. For the foregoing reasons the Respondent’s application dated 15th August 2016 is dismissed with costs to the Claimant.
13. Orders accordingly.
DATED SIGNED AND DELIVERED IN OPEN COURT AT NAIROBI THIS 13THDAY OF JANUARY 2017
LINNET NDOLO
JUDGE
Appearance:
Miss Muhanda for the Claimant
Mr. Njiru for the Respondent