[2017] KEELRC 258 (KLR)
The court found that the claimant had specifically pleaded and prayed for arrears of salary in the memorandum of claim, but the final judgment failed to address this claim. This omission constituted an error apparent on the face of the record. Under Rule 33 of the court rules, such an error is a valid ground for...
Source-derived case information.
- Citation
- [2017] KEELRC 258 (KLR)
- Parties
- Applicant: John Kimani Gitagia; Respondent: LOL General Trading Co. Ltd
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 759 of 2015
- Procedural Posture
- Review Application / Ruling on Application for Review of Judgment
- Outcome
- application for review allowed; judgment amended to include salary arrears award
- Judges
- DI Wasike
- Legal Topics
- Salary Arrears, Review of Judgment, Error on Face of Record
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Kimani Gitagia
Applicant
LOL General Trading Co. Ltd
Respondent
Procedural Posture
Review Application / Ruling on Application for Review of Judgment
Legal Issues
- 1 Whether there was an error apparent on the face of the record in omitting the award for salary arrears in the original judgment.
- 2 Whether the claimant is entitled to a review of the judgment to include the pleaded salary arrears.
Ratio Decidendi
The court found that the claimant had specifically pleaded and prayed for arrears of salary in the memorandum of claim, but the final judgment failed to address this claim. This omission constituted an error apparent on the face of the record. Under Rule 33 of the court rules, such an error is a valid ground for review. The court therefore allowed the application for review and amended the judgment to include an award of Kshs 144,280 for salary arrears.
Court Disposition
application for review allowed; judgment amended to include salary arrears award
Orders
- The judgment delivered on 17th March, 2017 is amended to include an award of Kshs 144,280 on account of arrears of salary.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF
KENYA AT NAIROBI
CAUSE NUMBER 759 OF 2015
JOHN KIMANI GITAGIA.......................................CLAIMANTS
VERSUS
LOL GENERAL TRADING CO. LTD................RESPONDENT
RULING
1. By a Motion dated 29th June, 2017 the claimant sought a review of this court’s judgement delivered on 17th March, 2017 to include an award for Kshs 144,280/= being the total sum of salary arrears not paid to the claimant by the respondent.
2. The application was based on the grounds among others that there was a mistake and error apparent on the face of the record in that the total sum of salary arrears unpaid were specifically pleaded and prayed for in paragraph 8 (g) of the memorandum of claim hence the error not to make the award was self-evident. One of the grounds for review of the court’s judgement under rule 33 of the court rules is error on the face of the record.
3. The court has considered the application and found that indeed it is correct that the claimant pleaded and prayed for arrears of salary yet the court in making the final award did not take this into account. The application is therefore found to be merited and is hereby allowed with the consequence that the judgement of the court delivered on 17th March, 2017 is hereby amended to include an ward of Kshs 144,280/= on account of arrears of salary.
4. It is so ordered.
Dated at Nairobi this 1st day of December 2017
Abuodha J. N.
Judge
Delivered this 1st day of December 2017
In the presence of:-
…………………………………………………… for Claimant
…………………………………………………….for Respondent
Abuodha J. N.
Judge