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ELRCDismissedApplication dated 2nd July, 2014· [2015] KEELRC 1553 (KLR)

Duncan Obiero Obiero v Fairview Hotel Limited [2015] KEELRC 1553 (KLR)

Industrial Court of Kenya (Employment and Labour Relations Court)
4 March 2015
850 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employment court refused to change its judgment because the employer sat on a key document during trial and only brought it up afterwards.

What this practically means

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Executive summary

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The Applicant/Respondent (employer) applied by notice dated 2nd July 2014 for review of the judgment delivered on 20th June 2014, contending that the court erred in awarding service gratuity at ½ monthly salary instead of 1/3, relying on clause 27(b) of a Collective Bargaining Agreement dated 21st June 2010 and registered on 30th June 2010, and asserting that gratuity had already been paid in full. The Claimant/Respondent opposed, arguing that the CBA was in the employer's possession throughout the trial and was never produced, that the employer was represented by an Advocate, and that review could not be used to amend its case after judgment. The Claimant relied on Chum Arap Songok v David Kibiego Rotich on the principle that parties are bound by their pleadings. Applying Rule 32(1) of the Industrial Court (Procedure) Rules 2010, the court, per Mathews N. Nduma, Principal Judge, found that the CBA issue was never presented at trial; the award rested on the Claimant's uncontradicted plea for service pay at ½ months' salary. The employer failed to show the CBA was not in its custody or that it could not, with due diligence, have been produced at trial. There was thus no error apparent on the face of the record and no discovery of new matter. The review application was dismissed with costs to the Claimant/Respondent on 4th March 2015.

Key legal issues

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01

Whether an error apparent on the face of the record existed in awarding gratuity at ½ monthly salary

Holding

No error apparent; the award was grounded in the Claimant's uncontradicted pleading for ½ months' salary service pay, which the Applicant never contradicted in the Reply or oral testimony.

Reasoning

The court examined the pleadings, evidence and submissions and found the CBA ground was never presented at trial. The Claimant pleaded entitlement to service pay at ½ months' salary for 3 years; the Respondent did not expressly contradict this in the Memorandum of Reply or in oral evidence. The judgment therefore rested on the material actually before the court, and the later invocation of clause 27(b) of the CBA cannot retroactively create an error on the record.

p. 3
02

Whether the CBA amounts to discovery of new and important matter or evidence

Holding

No; the CBA was in the Applicant's possession at all material times and due diligence was not shown.

Reasoning

Rule 32(1) requires that the new matter or evidence, after exercise of due diligence, was not within the applicant's knowledge or could not be produced at the time of the decree. The court found the CBA was always in the Respondent/Applicant's custody, that the Respondent was represented by an Advocate at trial, and that no explanation was given for its non-production, so the review ground failed.

p. 3
03

Whether review can be used to introduce matters not pleaded or canvassed at trial

Holding

No; parties are bound by pleadings and judgment must be pronounced on issues arising from them.

Reasoning

Relying on the Chum Arap Songok decision cited by the Claimant, the court held that the issue of a CBA governing service gratuity was never raised by either party at trial. An application for review cannot be deployed long after judgment, when the decree is ready for execution, to amend pleadings or introduce a new case. The review application was therefore misconceived and was dismissed with costs.

p. 2

Legal principles established

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  • A court may review its judgment only where new and important matter or evidence not producible with due diligence is discovered, or where there is a mistake or error apparent on the face of the record.
  • A judgment founded on uncontroverted pleadings, evidence and submissions cannot be varied on review by introducing documents that were in a party's possession throughout the trial.

Court orders

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  1. 1.The Application for review is dismissed
  2. 2.Costs awarded to the Claimant/Respondent
Jurisdiction invoked
Rule 32(1) of the Industrial Court (Procedure) Rules 2010 (power to review its 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, "Duncan Obiero Obiero v Fairview Hotel Limited [2015] KEELRC 1553 (KLR)", Case Analysis (2015). Application dated 2nd July, 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1553/eng@2015-03-04

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