[2016] KEELRC 629 (KLR)
The court found that there was an error apparent on the face of the record in the computation of compensation for unfair termination. While the judgment awarded six months' salary as compensation, the actual computation was based on eight months' salary. The court reviewed and corrected the computation to reflect...
Source-derived case information.
- Citation
- [2016] KEELRC 629 (KLR)
- Parties
- Applicant: Kenya Union of Commercial Food and Allied Workers; Respondent: Sanpack Africa Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 1389 of 2013
- Procedural Posture
- Review Application / Ruling on Application for Review of Judgment
- Outcome
- Application for review allowed in part to correct computation error; other grounds dismissed.
- Legal Topics
- Unlawful Termination, Compensation Computation Error, Review of Judgment, Procedural Fairness
- 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
Applicant
Sanpack Africa Limited
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 the computation of compensation for unfair termination.
- 2 Whether there was sufficient reason to review the judgment regarding the factual finding on the size and handling of the stolen items.
Ratio Decidendi
The court found that there was an error apparent on the face of the record in the computation of compensation for unfair termination. While the judgment awarded six months' salary as compensation, the actual computation was based on eight months' salary. The court reviewed and corrected the computation to reflect six months' salary for each grievant. Regarding the factual finding on the size and handling of the stolen items, the court held that the respondent did not contest the claimant's submissions, and therefore, there was no basis for review of this finding. The application for review was allowed only to the extent of correcting the compensation computation error.
Court Disposition
Application for review allowed in part to correct computation error; other grounds dismissed.
Orders
- Compensation for Bildad Kimani Njeri corrected to KES 130,054.00.
- Compensation for Stephen Omondi Meda corrected to KES 85,116.00.
Full Case Text
Judgment text and source record
38 paragraphs
REPUBLIC OF KENYA
EMPLOYMENT AND LABOUR RELATIONS COURT OF KENYA AT NAIROBI
CAUSE NO. 1389 OF 2013
KENYA UNION OF COMMERCIAL FOOD
AND ALLIED WORKERS…..…………………….……..CLAIMANT
VERSUS
SANPACK AFRICA LIMITED…….....…….………..RESPONDENT
M/s Oyombe for Respondent/Applicant
Mr John Owiyo for Claimant/Respondent
RULING
1. Respondent filed an application for review of judgement delivered on 18th March 2016 in terms of rules 27 and 32 of the Employment and Labour Relations Court (procedure) Rules 2010 on grounds that;
i. There is an error apparent on the face of the record and/or there is sufficient reason for such review in that;
a. In paragraph 15 at page 6, the court indicated that the two items, the subject of theft i.e. a floodlight and a blow mound were very large and required to be carried by a motor vehicle and placed into the vehicle by a forklift; and
b. In paragraph 24 at page 9 of the judgement, the court awarded six (6) monthly salary compensation for the unlawful and unfair termination of employment but in the computation an eight (8) months’ salary was awarded.
Issue b
2. It is clear on page 9 paragraph 24, that the court awarded the two grievants six (6) months salary compensation but in the calculation eight (8) months’ salary was applied. This is an apparent error on the face of the record and the computation is reviewed as follows:
Bildad Kimani Njeri
i. Compensation equivalent to six (6) months salary (15,664 x 6 = 93,984. 00)
Total award is Kshs 130,054. 00
Stephen Omondi Meda
i. Compensation equivalent to six (6) months salary
Kshs 62,406.
Total award Kshs 85,116. 00
3. With regard to issue (a) the suit proceeded on the bases of the pleading, list of documents and written submissions.
4. The court relied on the uncontroverted submissions by the claimant in paragraph 8 and 9 of the written submissions at page 2 to find that the blow mound machine is not a small item and could only be carried using a vehicle. That it could only be loaded to a vehicle using a crane or a forklight machine.
5. The respondent did not reply to these assertions in its final written submissions filed on 10th November 2015, whereas the submissions by the claimant were filed on 2nd November 2015 and served on the respondent.
6. There is no basis for review of this finding of fact by the court.
7. The final order of the court is as follows;
The application for review is allowed to correct the error on the face of the record in computing compensation for the two grievants as above and the total award is as follows;
i. Bildad Kimani Njeri
Kshs 130,054. 00
ii. Stephen Omondi Meda
Kshs 85,116. 00
8. The awards are payable with interest at court rates from 18th March 2015, date of the judgement, till payment in full.
9. The respondent to pay costs of the suit excluding costs for this application.
Dated and delivered at Nairobi this 9th day of September, 2016
MATHEWS N. NDUMA
PRINCIPAL JUDGE