[2020] KEELRC 1467 (KLR)
The court found that there was no error on the face of the record because the claimant's salary at the time of separation was Kshs. 40,000 per month, as pleaded in the amended statement of claim and not disputed by the respondent. The court had previously found that the claimant earned Kshs. 20,000 at the time of...
Source-derived case information.
- Citation
- [2020] KEELRC 1467 (KLR)
- Parties
- Claimant: Sammy Njoroge; Defendant: Shiva Carriers Limited; Defendant: Attorney General
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Cause 287 of 2014
- Procedural Posture
- Review Application / Ruling on Application for Review of Judgment
- Outcome
- application dismissed with costs
- Judges
- MN Nduma
- Legal Topics
- Review of Judgment, Unpaid Leave, Admission of Salary, Error on Face of Record
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Sammy Njoroge
Claimant
Shiva Carriers Limited
Defendant
Attorney General
Defendant
Procedural Posture
Review Application / Ruling on Application for Review of Judgment
Legal Issues
- 1 Whether there was an error on the face of the record regarding the salary used to compute unpaid leave days.
- 2 Whether the judgment delivered on 21st February 2019 should be reviewed and set aside or corrected as regards the amount awarded for unpaid leave.
Ratio Decidendi
The court found that there was no error on the face of the record because the claimant's salary at the time of separation was Kshs. 40,000 per month, as pleaded in the amended statement of claim and not disputed by the respondent. The court had previously found that the claimant earned Kshs. 20,000 at the time of employment and Kshs. 40,000 at the time of separation. Since the respondent did not file an amended response to dispute the salary at separation, this constituted an admission in law. Therefore, the computation of unpaid leave based on Kshs. 40,000 was correct, and the application for review lacked merit.
Court Disposition
application dismissed with costs
Orders
- The application for review is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT KISUMU
CASE NO. 287 OF 2014
(Before Hon. Justice Mathews N. Nduma)
SAMMY NJOROGE..............................................CLAIMANT/RESPONDENT
VERSUS
SHIVA CARRIERS LIMITED...................1ST DEFENDANT/RESPONDENT
ATTORNEY GENERAL............................2ND DEFENDANT/RESPONDENT
RULING
1. The 1st respondent/applicant prays for an order in the following terms:
2. That the court be pleased to review and set aside and correct the judgment delivered on 21st February 2019 with regard to the amount awarded on unpaid leave days.
3. That the application is on the basis that the court found that the plaintiff’s monthly salary was Kshs. 20,000 per month which figure was provided by the plaintiff himself and not disputed by the 1st defendant. That there is an error on the face of the record in that the court applied a monthly salary of Kshs. 40,000 in computing the award.
4. The suit was based on an amended statement of claim dated 22nd October 2014 and filed on 5th November 2014 in which the claimant pleaded that he was owed unpaid leave for 3 years at Kshs. 40,000 per year in the sum of Kshs. 120,000. Indeed even in the initial statement of claim was claimed unpaid leave at the rate of Kshs. 40,000 a month for two months.
5. The respondent did not file an amended response to the amended statement of claim. Salary of Kshs. 40,000 per month at the time of separation was not disputed and therefore constituted an admission in law and the court found accordingly.
6. The court had also found that the claimant earned Kshs. 20,000 a month at the time he was employed on 17th August 2010.
7. There is no contradiction in the judgment because the court found that the claimant earned Kshs. 40,000 a month at the time of separation two years later.
8. The application in review lacks merit and is dismissed with costs.
Ruling Dated, Signed and delivered this 9th day of March, 2020
Mathews N. Nduma
Judge
Appearances
Mr. Angu for claimant
Mr. Yogo for respondent
Chrispo – Court Clerk