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ELRCPartially AllowedCause No 110 of 2014· [2016] KEELRC 203 (KLR)

Kenya Union of Domestic, Hotels,Educational Institutions and Hospital Work v Pwani University & another [2016] KEELRC 203 (KLR)

Employment and Labour Relations Court
18 November 2016
1,274 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 corrected its arithmetic on a wrongful termination award but refused to rethink decisions already made—those require an appeal, not a review.

What this practically means

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Executive summary

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The applicant, a claimant union branch, applied by Notice of Motion dated 12.2.2016 under sections 12(1) and 16 of the Industrial Court Act for review of the ELRC judgment of 13.11.2015, which had declared the termination of 22 (originally 23) grievants' employment unlawful and awarded kshs.4,195,319 plus costs and interest. The applicant sought (a) an award in favour of Dorcas Salama Randu, whose name was erroneously omitted, and (b) severance pay for each grievant at 30 days' pay per completed year as provided in the CBA. The 1st respondent did not oppose adding Dorcas Salama Randu but informally sought reduction of awards to Kenga Katana, Johnson Naunga and Paul Karisa Kahindi, contending the correct aggregate was kshs.4,174,167, and opposed the severance claim as res judicata. The court held that a prayer considered and dismissed on merits cannot be revisited on review; the remedy is appeal, so the severance request was dismissed. The respondent's informal reduction request failed as the court was not properly moved and her calculations were incorrect. However, on its own motion under rule 33, the court rectified arithmetical errors, reducing Kenga Katana's award to kshs.172,203 and adjusting the other two awards, and corrected the aggregate for the 22 grievants to kshs.3,960,111. Judgment was reviewed by adding an award of kshs.198,607 for Dorcas Salama Randu, making the aggregate for the 23 grievants kshs.4,158,718 plus costs and interest as previously ordered.

Key legal issues

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01

Whether dismissal of severance pay claim is an error apparent on the face of the record

Holding

It is not; a prayer considered and dismissed on merits can only be challenged on appeal

Reasoning

Review under rule 32(1) applies where there is an error apparent on the face of the record. The severance pay prayer was adjudicated on its merits in the 13.11.2015 judgment, so revisiting it on review would amount to the court sitting on appeal over its own judgment. The applicant's proper remedy was an appeal.

p. 2
02

Whether the court could reduce awards to the three grievants on the respondent's informal request

Holding

Declined; the respondent neither appealed nor formally applied for review, and her calculations were incorrect

Reasoning

The respondent raised the alleged excessiveness only by affidavit and submissions without following the procedure for review. Even if the court excused procedural non-compliance, the calculations were demonstrably wrong, so the informal request failed.

p. 2
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Whether the court could correct arithmetical errors and the omitted grievant suo motu / by consent

Holding

Yes; the awards to the three grievants were rectified under rule 33 and Dorcas Salama Randu added by consent, giving an aggregate of kshs.4,158,718

Reasoning

The court invoked rule 33 to rectify mistakes and arithmetical errors in quantifying the awards to the three grievants and the aggregate. Dorcas Salama Randu's omission was unopposed and admitted, so judgment was reviewed to award her the same reliefs as the other 22 grievants.

p. 3

Legal principles established

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  • A prayer dismissed on merits cannot be revisited on review; the remedy is appeal, not review
  • An applicant for review bears the burden of demonstrating an error apparent on the face of the record
  • The court may on its own motion rectify clerical or arithmetical errors under rule 33

Court orders

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  1. 1.The application dated 12.2.2016 is allowed only to the extent that the judgment dated 13.11.2015 is reviewed and corrected by adding an award in favour of Dorcas Salama Randu of kshs.198,607 (notice kshs.39,606; leave kshs.11,127; underpayment kshs.68,662; compensation kshs.79,212)
  2. 2.The award to Kenga Katana reduced from kshs.198,607 to kshs.172,203, Johnson Naunga from kshs.156,598 to kshs.156,754, and Paul Karisa Kahindi from kshs.156,598 to kshs.156,754
  3. 3.The aggregate award for the 23 grievants corrected from Kshs.4,195,319 to kshs.4,158,718, plus costs and interest as earlier ordered on 13.11.2015
  4. 4.Request for review to award severance pay dismissed
  5. 5.Respondent's informal request for review to reduce awards declined

Authorities

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Legislation

  • Industrial Court Actsection 12(1) and 16
  • Employment and Labour Relations Court (Procedure) Rules, 2016rule 32(1)
  • Employment and Labour Relations Court (Procedure) Rules, 2016rule 33
Jurisdiction invoked
Section 12(1) and 16 of the Industrial Court Act and rule 32(1) of the Employment and Labour Relations Court (Procedure) Rules, 2016; rule 33 for rectification of clerical/arithmetical errors

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, "Kenya Union of Domestic, Hotels,Educational Institutions and Hospital Work v Pwani University & another [2016] KEELRC 203 (KLR)", Case Analysis (2016). Cause No 110 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/203/eng@2016-11-18

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