[2017] KEELRC 449 (KLR)
The court found that the gratuity award in the original judgment was erroneous as it was based on gross salary rather than basic salary, contrary to the express terms of the contract of service. The court reviewed and corrected the gratuity calculation to be 25% of the basic salary earned during the relevant period....
Source-derived case information.
- Citation
- [2017] KEELRC 449 (KLR)
- Parties
- Claimant: Ken Oluoch; Respondent: Postal Corporation of Kenya Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 853 of 2010
- Procedural Posture
- Review Application / Ruling on Application for Review of Judgment
- Outcome
- Application for review partially allowed; gratuity award reviewed; other awards upheld.
- Judges
- MN Nduma
- Legal Topics
- Gratuity Calculation, Notice Pay Entitlement, Review of Judgment, Compensation Award, Employment Contract Terms
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ken Oluoch
Claimant
Postal Corporation of Kenya Limited
Respondent
Procedural Posture
Review Application / Ruling on Application for Review of Judgment
Legal Issues
- 1 Whether gratuity should be calculated on gross salary or basic salary as per the contract of service.
- 2 Whether the claimant was entitled to three months' salary in lieu of notice or only one month as per the contract.
- 3 Whether the award of 10 months' salary as compensation was proper in the absence of a request for renewal of contract.
Ratio Decidendi
The court found that the gratuity award in the original judgment was erroneous as it was based on gross salary rather than basic salary, contrary to the express terms of the contract of service. The court reviewed and corrected the gratuity calculation to be 25% of the basic salary earned during the relevant period. On the issue of notice pay, the court held that the claimant was entitled to three months’ salary in lieu of notice, as stipulated in the termination clause of the contract. Regarding the compensation of 10 months’ salary, the court determined that this was a deliberate finding of fact and law in the original judgment and could only be challenged by way of appeal, not by...
Court Disposition
Application for review partially allowed; gratuity award reviewed; other awards upheld.
Orders
- The award of gratuity is reviewed to be calculated at 25% of the basic salary earned during the period, not on gross salary.
- The award of three months’ salary in lieu of notice is upheld.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
EMPLOYMENT AND LABOUR RELATIONS COURT
AT NAIROBI
CAUSE NO. 853 OF 2010
KEN OLUOCH..................................................................CLAIMANT
VERSUS
POSTAL CORPORATION OF KENYA LIMITED....RESPONDENT
Ongoji for claimant
Miller for respondent
RULING
1. The respondent seeks an order for review of the judgment of the court delivered on the 9th December 2016 on the grounds that:-
(i.) The gratuity was awarded based on the gross salary instead of the basic salary as provided in the contract of service.
(ii.) The court ought to have awarded equivalent of one month’s salary in lieu of notice and not three months’ salary.
(iii.) The claimant ought not to have been granted 10 months’ salary as compensation since he had not made request for renewal of contract.
2. The application is supported by an affidavit of Julius Opio sworn on 13th August of 2012.
3. The clamant filed grounds of opposition to the application on 16th May 2016 as follows: -
4. The application is misconceived, mischievous and in bad faith since it lacks basis.
5. There is no error on the face of the judgment and the application is a disguised appeal on the decision of the court.
Determination
Gratuity
6. The court is satisfied that the award of gratuity ought to be calculated at a rate of 25% of the basic salary earned during the period and not on the gross salary in terms of the gratuity clause in the contract of service signed by the parties. The award in judgment of the court is reviewed accordingly.
Notice Pay
7. The court is satisfied that the claimant was entitled to the equivalent of three months’ salary in lieu of notice in terms of the termination clause in the contract of service signed by the parties.
Compensation
8. This was a deliberate finding of fact and law by the court and may only be challenged by an appeal to the Court of Appeal and not by an application for review.
9. The judgment of the court is reviewed accordingly.
10. Each party to bear their own costs of the application.
Dated, Signed and Delivered on this 17th Day of November 2017
MATHEWS NDERI NDUMA
JUDGE