Samuel Kirago v Kuehne Nagel Limited [2014] KEELRC 1271 (KLR)
The bottom line
#A Kenyan employment court can review its own judgment and award notice pay and compensation even where salary was never formally pleaded.
What this practically means
#Executive summary
#Key legal issues
#Whether there was an error apparent on the face of the record in the finding that no salary evidence was adduced
No error apparent on the face of the record; the claim and hearing never stated the salary or that the letter of appointment figure was the last salary
Although the letter of appointment (exhibit SK1) stated a salary of Kshs 26,636, paragraph 4 of the Memorandum of Claim merely referred to the letter without stating it was the last salary. The body of the claim contained no reference to salary, and no salary was mentioned during the hearing or submissions. The court could not presume the figure was the last salary, so no error appeared on the face of the record.
Whether the judgment erred in not awarding 12 months' compensation under Section 49 of the Employment Act
No error; the claim contained no basis for quantifying damages under Section 49
The Claimant pleaded damages generally and picked a figure of Shs 2,000,000 without basis, without referencing Section 49 of the Employment Act, years to retirement or salary to be earned. The general prayer for 'any other relief' did not cure the absence of a pleaded basis for compensation, so the court found no error in declining the 12 months' compensation.
Whether sufficient reasons existed to warrant review notwithstanding absence of error apparent
Yes; the uncontested salary figure appeared in the Claimant's written submissions and the letter of appointment on record, and the issues of notice and damages had been framed and submitted upon
The court found sufficient reasons for review because the written submissions referred to the salary of Kshs 26,636, matching the letter of appointment, and the Respondent did not contest it. Relying on the Odd Jobs principle, the court exercised its power to decide on unpleaded matters left to it at trial, awarding notice pay and modest compensation.
Whether costs should follow the event
No; costs in the Industrial Court are discretionary under Section 12(4) of the Industrial Court Act and the original costs order stood
The court rejected the Claimant's submission that costs follow the outcome, holding the relied-upon authority was quoted out of context. Section 12(4) gives the court discretion to make just costs orders, and the original order that each party bear its own costs was a proper exercise of that discretion given the Claimant's contribution to the dismissal.
Legal principles established
#- A court may review its own judgment for sufficient reasons, including where it is later pointed out that evidence of the relevant figure was on record and uncontested
- Costs do not follow the event in the Industrial Court; the court has discretion over costs under Section 12(4) of the Industrial Court Act
- A court may base its decision on unpleaded matters if it appears from the course followed at trial that the issue was left to the court for decision
Court orders
#- 1.Review of the judgment delivered on 9th October 2012 on the ground of sufficient reasons
- 2.Award of one month's salary in lieu of notice in the sum of Kshs. 26,636
- 3.Award of two months' salary as compensation in the sum of Shs. 53,272
- 4.The rest of the judgment remains as delivered
- Jurisdiction invoked
- Section 16 of the Industrial Court Act and Rule 32 of the Industrial Court (Procedure) Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Samuel Kirago v Kuehne Nagel Limited [2014] KEELRC 1271 (KLR)", Case Analysis (2014). Cause No 269 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/1271/eng@2014-05-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.