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ELRCPartially AllowedNot stated in the judgment· [2016] KEELRC 1176 (KLR)

Muriel Ogoudjobi v Mara Ison Technologies Kenya Limited [2016] KEELRC 1176 (KLR)

Employment and Labour Relations Court (Industrial Court)
6 May 2016
HWHellen S. Wasilwa
1,968 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 own judgment to add admitted leave pay of USD 13,845 and allowed a conditional stay of execution pending appeal.

What this practically means

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Executive summary

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This ruling of the Employment and Labour Relations Court (Hellen S. Wasilwa J) determined two applications arising from a judgment of 3rd December 2015 awarding the Claimant damages for unfair termination on account of redundancy. The first application, by the Claimant, sought review of the judgment to include accrued leave pay of USD 13,845 (59 days), which had been admitted in the termination letter and in the Respondent's submissions but omitted from the final award. The court found a mistake or error apparent on the face of the record under Rule 32(1) of the Industrial Court (Procedure) Rules 2010, regretted the omission, and held that rectifying an admitted and settled matter was not sitting on appeal on its own judgment. The judgment was reviewed to include the accrued leave award and the application was allowed as prayed. The second application, by the Respondent, sought stay of execution pending an intended appeal to the Court of Appeal. Applying Order 42 Rule 6(2) of the Civil Procedure Rules 2010, the court found the requirements of substantial loss, absence of unreasonable delay and security satisfied, noting the Claimant was not a Kenyan national without known Kenyan assets from whom recovery could be made if the appeal succeeded. Stay was granted on condition that half the decretal sum be released to the Claimant through her counsel and the balance deposited in an interest-earning account operated by counsel on record. As both applications succeeded, each party was ordered to bear their own costs of the applications.

Key legal issues

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01

Whether there was a mistake or error apparent on the face of the record justifying review

Holding

Yes - the admitted accrued leave of USD 13,845 was innocently omitted from the judgment and the court reviewed the judgment to include it.

Reasoning

The claim for 59 days accrued leave was pleaded in the Memorandum of Claim and admitted in the Respondent's Defence (termination letter at page 41) and in the Respondent's submissions. The court acknowledged its omission as an innocent mistake, invoked Rule 32(1), and held that reviewing a settled admitted matter is not sitting on appeal on its own judgment. It therefore included the USD 13,845 in the award.

p. 4
02

Whether stay of execution pending appeal should issue

Holding

Yes, on conditions: half the decretal sum released to the Claimant, balance deposited in an interest-earning account operated by counsel on record.

Reasoning

The Respondent filed a Notice of Appeal promptly and demonstrated that the Claimant, a non-Kenyan national without known Kenyan assets, might not repay sums if the appeal succeeded. The criteria under Order 42 Rule 6(2) - substantial loss, no unreasonable delay, and security - were met, and the Respondent offered to abide by conditions.

p. 5

Legal principles established

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  • The Employment and Labour Relations Court has power under Rule 32(1) of the Industrial Court (Procedure) Rules 2010 to review its own judgment on account of a mistake or error apparent on the face of the record, and doing so does not amount to sitting on appeal on its own judgment.
  • A party admitted to be owed an amount is obliged to settle it, and inadvertent omission of an admitted claim from an award can be rectified by review.
  • Stay of execution pending appeal requires substantial loss, absence of unreasonable delay and security, under Order 42 Rule 6(2) of the Civil Procedure Rules 2010, and may be granted on conditions.

Court orders

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  1. 1.Judgment of 3rd December 2015 reviewed to include an order for accrued leave of 59 days being USD 13,845
  2. 2.The Claimant's application for review allowed as prayed
  3. 3.Stay of execution of the judgment of 3rd December 2015 granted pending the intended appeal, on condition that one half of the decretal sum is released to the Claimant through her Counsel and the balance deposited in an interest earning account operated by Counsel on record
  4. 4.Each party to bear their own costs of the applications

Authorities

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Legislation

  • Employment & Labour Relations Court ActSection 12(3)(i); Section 16
  • Industrial Court (Procedure) Rules 2010Rule 16(1) & (2); Rule 31(2); Rule 32(1)
  • Civil Procedure Act, Cap 21 Laws of KenyaSections 1A, 1B, 3A
  • Civil Procedure Rules 2010Order 42 Rule 6(2)
  • Employment ActSection 40(1)(f) and 40(1)(g)
Jurisdiction invoked
Section 12(3)(i) and Section 16 of the Employment & Labour Relations Court Act; Rule 16(1) & (2) and Rule 32 of the Industrial Court (Procedure) Rules 2010; Order 42 Rule 6 of the Civil Procedure Rules 2010

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Muriel Ogoudjobi v Mara Ison Technologies Kenya Limited [2016] KEELRC 1176 (KLR)", Case Analysis (2016). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1176/eng@2016-05-06

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