Boniface Mulandi v Ali Barbours Cave Restaurant [2016] KEELRC 708 (KLR)

Industrial Court (Employment and Labour Relations Court)

9 September 2016

OMONESMUS MAKAU

954 words in judgment

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The bottom line

Kenya's Employment Court corrected its own overtime calculation error, cutting the award, and confirmed that only a formal application—not a replying affidavit—can seek review.

What this practically means

Executive summary

This is a ruling on a review application arising from a judgment delivered on 1.7.2016 in which the claimant was awarded kshs. 184,749.40, including kshs. 104,270.40 as compensation for overtime. The respondent (applicant) sought review on the ground of a mistake or error apparent on the face of the record: in calculating the overtime award the court had used 45 normal working hours per week instead of the 52 hours prescribed by regulation 5(1) of the Regulation of Wages (Hotels and Catering Traders) Order, which applied to the claimant, a waiter rather than a gardener. The claimant opposed the application and, through his replying affidavit, sought an upward review of the overtime award to kshs. 535,165, claiming 4,804 extra hours at kshs. 55.70 per hour, and asked that the work attendance register be produced to verify his claim. The court found the applicant's application merited: the contract and the regulation both provided for 52 hours per week, and using 45 hours was an error apparent on the face of the record which produced the mistaken finding of 1,872 extra hours and the overtime award. The claimant's request for upward review was however declined as incompetent, since a replying affidavit is not an application for review under Rule 32(1) of the Industrial Court Procedure (2010) Rules, and the court lacked jurisdiction to take new evidence to enhance the award. The court allowed the review, set aside the kshs. 104,270.40 overtime award, fixed the corrected total award at kshs. 80,479 plus costs and interest as earlier ordered, and awarded no costs on the application because the error was the court's own.

Key legal issues

Whether the applicant's application for review was merited

Holding

Allowed - the court had used 45 hours per week instead of the statutory 52 hours under regulation 5 of the Regulation of Wages (Hotels and Catering Traders) Order, an error apparent on the face of the record

Reasoning

There was no dispute that the employment contract and regulation 5 of the Regulations of Wages (Hotels & Catering Trades) Order prescribed 52 normal working hours per week. The claimant, a waiter and not a gardener, fell under that provision. The original judgment's use of 45 hours produced a mistaken finding of 1,872 extra hours and the consequent overtime award, so the error was apparent and correctable on review.

p. 2

Whether the claimant's request for upward review made in a replying affidavit could be entertained

Holding

Declined as incompetent; a replying affidavit is not an application for review under Rule 32(1) and no new evidence may be taken to enhance an award

Reasoning

The claimant sought enhancement to kshs. 535,165 solely through his replying affidavit without citing any law or precedent. Rule 32(1) permits a person aggrieved by a decree or order to apply for review, with the application under sub-rule (3) in Form 6, or by notice of motion under rule 31(2). A replying affidavit satisfies none of these requirements, so the request was incompetent.

p. 2

Legal principles established

A court on review may correct an error apparent on the face of the record arising from its own mistake.

Court orders

1.The application for review by the applicant is allowed
2.The mistake or errors on the judgment are corrected by setting aside the award of kshs. 104,270.40 in respect of overtime pay
3.The total award in the judgment after correction shall be kshs. 80,479 plus costs and interest as earlier ordered
4.No costs awarded for the application to any party because the error was by the court

Authorities

Legislation

Regulation of Wages (Hotels and Catering Traders) Orderregulation 5(1)
Industrial Court Procedure (2010) RulesRule 32(1) and 32(3); Form 6 First Schedule
Industrial Court Procedure (2010) RulesRule 31(2)
Civil Procedure Rulesnot specified (notice of motion for review)

Jurisdiction invoked: Rule 32(1) of the Industrial Court Procedure (2010) Rules (review of decree/order)

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Boniface Mulandi v Ali Barbours Cave Restaurant [2016] KEELRC 708 (KLR)", Case Analysis (2016). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/708/eng@2016-09-09

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