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ELRCDismissedCause No 1537 of 2014· [2017] KEELRC 1903 (KLR)

Dickson Matingi v DB Schenker Limited [2017] [2017] KEELRC 1903 (KLR)

Employment and Labour Relations Court
13 January 2017
LNLINNET NDOLO
695 words in judgment
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The bottom line

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A Kenyan employment court refused to review its own award, confirming that review is not a second chance to present evidence you already had.

What this practically means

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Executive summary

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By an award delivered on 8th July 2016, the Court granted the Claimant twelve months' salary in compensation, one month's salary in lieu of notice, and house allowance for 170 months. The Respondent applied for review dated 15th August 2016 on the ground of discovery of new evidence: pay slips from Comprite Kenya Limited, its outsourced payroll manager, allegedly showing the Claimant had been paid house allowance during employment. The Respondent also disputed the rate of house allowance applied to the period preceding the 2011 contract, contending it should be 15% of basic pay of Kshs. 11,712. The Claimant opposed, arguing the matter was fully and fairly heard, the pay slips were always within the Respondent's knowledge, and no explanation was given for their non-production. The Court, applying Section 16 of the Employment and Labour Relations Court Act and Rule 33(1)(a) of the Procedure Rules, held that review on discovery of new evidence requires proof that the material could not, with due diligence, have been produced earlier. The Respondent gave no account of any difficulty in obtaining the pay slips; review is not meant to let a party fix its case post judgment. On the rate issue, the Court held any error would be misapprehension of law and fact, correctable only on appeal. The application was dismissed with costs to the Claimant.

Key legal issues

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01

Whether new evidence justifying review under Rule 33(1)(a) had been discovered

Holding

No - the Respondent failed to demonstrate due diligence

Reasoning

The Respondent outsourced payroll to Comprite Kenya Limited but never explained what difficulties it faced in procuring the pay slips at the hearing. The new evidence was therefore within its knowledge and producible at trial. Review is not a vehicle for patching a case after judgment.

p. 2
02

Whether the rate of house allowance applied pre-2011 is reviewable

Holding

No - any error in the rate is misapprehension of law and fact, not reviewable

Reasoning

The Court held that where it applied a particular rate of house allowance, an alleged error in that computation amounts to misapprehension of law and fact. Such errors fall outside Rule 33 and can only be corrected on appeal, not through review.

p. 2

Legal principles established

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  • Discovery of new and important evidence does not automatically entitle a party to review; the party must show the evidence was not within their knowledge despite due diligence
  • Review cannot be used to cure an error of law or fact misapprehension; such errors are for appeal

Court orders

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  1. 1.The Respondent's application dated 15th August 2016 is dismissed
  2. 2.Costs of the application awarded to the Claimant

Authorities

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Legislation

  • Employment and Labour Relations Court ActSection 16
  • Employment and Labour Relations Court (Procedure) RulesRule 33(1)

Cases cited (1)

  • Salama Mahmoud Saad v Kikas Investments Limited
    [2014] eKLR
Jurisdiction invoked
Section 16 of the Employment and Labour Relations Court Act and Rule 33 of the Procedure Rules

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, "Dickson Matingi v DB Schenker Limited [2017] [2017] KEELRC 1903 (KLR)", Case Analysis (2017). Cause No 1537 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2017/1903/eng@2017-01-13

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