[2018] KEELRC 1989 (KLR)
The court found that there were indeed apparent errors on the face of the record in the judgment delivered on 20th December 2016. Specifically, the period of service for the first grievant was misstated, leading to an incorrect award of compensation and notice pay. The court corrected the compensation to reflect ten...
Source-derived case information.
- Citation
- [2018] KEELRC 1989 (KLR)
- Parties
- Applicant: Kenya Union of Commercial, Food and Allied Workers’ Union; Respondent: Kapa Oil Refineries Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 1690 of 2011
- Procedural Posture
- Review Application / Ruling on Application for Review of Judgment
- Outcome
- Application for review allowed; judgment varied to correct errors in awards; interest award removed.
- Judges
- MN Nduma
- Legal Topics
- Review of Judgment, Apparent Error on Face of Record, Compensation Calculation, Notice Pay, Gratuity Award
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenya Union of Commercial, Food and Allied Workers’ Union
Applicant
Kapa Oil Refineries Limited
Respondent
Procedural Posture
Review Application / Ruling on Application for Review of Judgment
Legal Issues
- 1 Whether there were apparent errors on the face of the record in the judgment delivered on 20th December 2016.
- 2 Whether the compensation, notice pay, and gratuity awarded to the grievants should be reviewed and varied accordingly.
- 3 Whether interest should have been awarded despite not being pleaded.
Ratio Decidendi
The court found that there were indeed apparent errors on the face of the record in the judgment delivered on 20th December 2016. Specifically, the period of service for the first grievant was misstated, leading to an incorrect award of compensation and notice pay. The court corrected the compensation to reflect ten months’ salary instead of five, adjusted the notice pay to three months instead of two, and awarded gratuity for the correct period of service. For the second grievant, the court corrected the notice pay from three months to two months, in line with the period of service, and confirmed the other awards. The court also found that interest had been erroneously awarded as it was...
Court Disposition
Application for review allowed; judgment varied to correct errors in awards; interest award removed.
Orders
- Compensation for Julius Kasyoka reviewed to Kshs.106,500 (ten months’ salary).
- Notice pay for Julius Kasyoka varied to Kshs.31,950 (three months’ salary).
Full Case Text
Judgment text and source record
34 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT NAIROBI
CAUSE NO. 1690 OF 2011
(Before Hon. Justice Mathews Nderi Nduma)
KENYA UNION OF COMMERCIAL, FOOD AND
ALLIED WORKERS’ UNION..........................CLAIMANT
-Versus-
KAPA OIL REFINERIES LIMITED................RESPONDENT
RULING
The applicant seeks review of the judgment of the court delivered on 20th December 2016 on the grounds that there are apparent errors on the face of record. The application is grounded on Rule 33 of the Employment and Labour Relations Court (Procedure) Rules 2016.
The court is satisfied that there are apparent errors on the face of the judgment of court as follows: -
Julius Kasyoka
a. The court correctly stated that the grievant had worked from February 1995 to July 2010 but erroneously stated that it was a period of over five years instead of stating that it was period of over 15 years. This lead the court to award the claimant compensation of equivalent of five (5) months salary instead of awarding the equivalent of ten (10) months’ salary as it did with the 2nd grievant.
Accordingly, the court reviews the compensation from the equivalent of five (5) months’ salary to the equivalent of ten (10) months salary in the sum of Kshs. (10,650 x 10) = Kshs.106,500/=.
b. The court awarded two (2) months salary in lieu of notice instead of three (3) months’ salary in lieu of notice and therefore the award of Kshs.21,300/= is varied to Kshs.31,950/=.
c. The grievant worked indeed for fifteen (15) years and is awarded gratuity in the sum of Kshs.159,750/=.
d. The grievant was correctly awarded 15 days’ salary for the month of July 2010 in the sum of Kshs.5,325/=/
Total award is Kshs. 303,525. 00 /=.
Thathi Mwanga (deceased) – 2nd grievant
a. The court correctly awarded the grievant the equivalent of ten (10) months’ salary as compensation in the sum of Kshs.101,000/=. He had served 9 years and 9 months.
b. The court awarded the grievant three months in lieu of notice instead of two months applicable with respect of employees who had not served 10 years’ service. The notice pay is reviewed from 30,300 to 20,200.
c. The grievant worked for 9 years completed service and is awarded Kshs.90,000.
d. The court correctly awarded 15 days arrear salary in the sum of Kshs.5,826. 92/=.
Total award is Kshs.217,026. 92/=
Interest was not pleaded and the award was erroneously made. Judgment is reviewed to remove the award of interest.
Costs to abide the outcome.
DATED, SIGNED AND DELIVERED AT NAIROBI ON THIS 18TH DAY OF APRIL 2018
MATHEWS NDERI NDUMA
JUDGE
Appearance:
Mrs Kanyiri for respondent/applicant
Mr Nyumbe for respondent
Ann Njung’e: Court Clerk