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ELRCPartially AllowedCause No 341 of 2010· [2013] KEELRC 531 (KLR)

Kiliopa Omukuba Okutoyi v Telkom Kenya Limited [2013] KEELRC 531 (KLR)

Industrial Court of Kenya
13 June 2013
MMM. Mbaru
888 words in judgment
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The bottom line

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Kenya's Industrial Court corrected its own contradictory judgment and awarded a dismissed worker three months' salary for unfair termination.

What this practically means

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Executive summary

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By a Notice of Motion dated 11th December 2012 under Rule 32 of the Industrial Court Procedure Rules, the claimant sought review of the court's judgment of 12th October 2012, which had confirmed part of the claim dated 19th March 2010. The claimant argued that the judgment was contradictory: it found that due process under section 41 of the Employment Act had not been followed and that the summary dismissal was unfair, yet it also found that the claimant had failed to discharge the burden of proving unfair termination. The claimant, who had already been paid a decretal amount of Kshs. 450,003.60, sought the maximum compensation of Kshs. 507,324.00 under section 49 of the Employment Act. The respondent opposed the review, contending that the award had been fully complied with, the judgment was valid, and the application really raised new legal arguments fit only for appeal. The respondent further argued that the court had already awarded severance pay as fair compensation and that awards of 4 to 6 months were the norm. The court, per M. Mbaru, Judge, reviewed its own judgment and acknowledged an error apparent on the face of the record arising from the contradictory findings. It restated the criteria for review - new and important matter or evidence, error apparent on the face of the record, or other sufficient reason - and cautioned that a good ground for appeal is not necessarily a ground for review and that misconstruction of the law is not a reviewable error. The court awarded compensation for unfair termination equivalent to 3 months' salary, Kshs. 126,831.00, payable within 30 days, allowed the application, and ordered each party to bear their own costs. The judgment was delivered in open court on 13th June 2013.

Key legal issues

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01

Whether an internal contradiction in the judgment (finding unfair termination yet holding the claimant failed to prove it) constitutes an error apparent on the face of the record

Holding

Yes - the court accepted this as an error apparent on the record justifying review

Reasoning

The court read back its judgment of 12th October 2012 and acknowledged a firm finding of unfair termination, while the same judgment had also found the claimant had not discharged the burden of proving unfair termination. The court treated this internal inconsistency as an error or mistake apparent on the face of the record, one of the recognised grounds for review under Rule 32, and proceeded to correct it by making an award of compensation.

p. 2
02

Whether a grievance about the legal correctness of findings is a ground for review or only for appeal

Holding

A misconstruction of the law or erroneous exposition of the law is not a good ground for review; the aggrieved party should appeal instead

Reasoning

The court distinguished review from appeal. It stated that the criteria for review apply only where the aggrieved party has not preferred an appeal, that a good ground for appeal is not necessarily a good ground for review, and that an error for review must be self-evident. It is not enough that the court would have taken another view or proceeded on an incorrect exposition of the law. This aligned with the respondent's submission that the application was really an attempted appeal disguised as review, though the court still found an apparent error sufficient to grant review in part.

p. 2

Legal principles established

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  • The grounds for review are: discovery of new and important matter or evidence, an error or mistake apparent on the face of the record, or any other sufficient reason.
  • A good ground for appeal is not necessarily a good ground for review; the error for review must be self evident.
  • Misconstruction of the law is not a good reason for a review.
  • Upon a finding of unfair termination, a court should award reasonable compensation notwithstanding other aspects of the case.

Court orders

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  1. 1.The application is allowed with a review of the court judgment dated 12th October 2012
  2. 2.An award of Kshs. 126,831.00 being 3 months' pay of the claimant's last salary, payable within 30 days
  3. 3.Each party to bear their own costs

Authorities

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Legislation

  • Employment ActSection 41
  • Employment ActSection 49
  • Industrial Court Procedure RulesRule 32
Jurisdiction invoked
Rule 32 of the Industrial Court Procedure Rules (review of the court's own judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kiliopa Omukuba Okutoyi v Telkom Kenya Limited [2013] KEELRC 531 (KLR)", Case Analysis (2013). Cause No 341 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/531/eng@2013-06-13

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.