[2013] KEELRC 64 (KLR)
The court found that the applicant failed to demonstrate the existence of new evidence that was not within their knowledge before the judgment was passed. The alleged error regarding the bonus calculation was not substantiated, as the court had relied on the evidence presented, specifically the testimony of RW1, who...
Source-derived case information.
- Citation
- [2013] KEELRC 64 (KLR)
- Parties
- Claimant: Eric Ochieng Amollo; Respondent: Visions Institute of Professionals Ltd
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Cause 18 of 2013
- Procedural Posture
- Review Application / Ruling on Application for Review of Judgment
- Outcome
- application dismissed
- Judges
- AN Makau
- Legal Topics
- Review of Judgment, Error Apparent on Record, New Evidence, Bonus Entitlement, Industrial Court Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Eric Ochieng Amollo
Claimant
Visions Institute of Professionals Ltd
Respondent
Procedural Posture
Review Application / Ruling on Application for Review of Judgment
Legal Issues
- 1 Whether the applicant has demonstrated discovery of new evidence not within their knowledge before judgment was passed.
- 2 Whether there is an error apparent on the face of the record justifying review or setting aside of the judgment.
- 3 Whether the application for review is competent under the Industrial Court Procedure Rules.
Ratio Decidendi
The court found that the applicant failed to demonstrate the existence of new evidence that was not within their knowledge before the judgment was passed. The alleged error regarding the bonus calculation was not substantiated, as the court had relied on the evidence presented, specifically the testimony of RW1, who clarified the bonus as 25% of total earnings for the six-month semester. The court calculated the quantum accordingly and found no error in its judgment. Furthermore, the application was found to be incompetent for failing to comply with the procedural requirements of the Industrial Court Procedure Rules regarding the mode of moving the court for review. Consequently, the...
Court Disposition
application dismissed
Orders
- The Notice of Motion dated 18/9/2013 is dismissed.
- No review or setting aside of the judgment delivered on 12/7/2013 is granted.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE INDUSTRIAL COURT OF KENYA
AT MOMBASA
CAUSE NO.18 OF 2013
ERIC OCHIENG AMOLLO ….....................................................CLAIMANT
VERSUS
VISIONS INSTITUTE OF PROFESSIONALS LTD …................RESPONDENT
R U L I N G
BACKGROUND
The respondent has brought a Notice of Motion dated 18/9/2013 seeking review or setting aside of this court's judgment delivered on 12/7/2013. The basis of the Motion is that the applicant has discovered new evidence which was not his knowledge before the judgment was passed and in addition, there is an error apparent on the face of the record. The Motion is supported by affidavit of Andrew Talam.
The claimant has opposed the Motion by his own affidavit sworn on 14/10/2013 the gravamen of which is that the applicant has not demonstrated the new evidence and the error allegedly apparent on the face of the record.
APPLICANTS SUBMISSIONS
The Motion was heard on 4/11/2013 when the applicant relied on written submissions filed on the same day. The applicant seemed to submit that the court made an error by awarding the claimant ksh.51619/ for bonus instead of ksh.8603. 25. According to her that error entitled the applicant to an order for review and setting aside of the entire judgment.
RESPONDENTS SUBMISSION
Muyala for the claimant apposed the Motion. He submitted that no new evidence or error apparent on the face of the record has been demonstrated. According to him the judgment was based on the evidence tendered and there was no error made by the court.
ANALYSIS AND DETERMINATION
The court agrees with the claimant's counsel that the application is not well founded. It is an afterthought and frivolous. The question of bonus payable was answered by RW1 when he clarified to the court that the amount was 25% of the total earning for the 6 months semester. The court worked the quantum at ksh.51619. 50. There was no error made. Last but not least the court notes that in addition to the Motion lacking merits the same is incompetent for want of for. It offends the express provisions of the Industrial Court Procedure Rules on the mode of moving the court for review.
DISPOSITION
The Motion is dismissed for the reasons above.
Signed dated and delivered this 6th day of December 2013
ONESMUS MAKAU
JUDGE