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ELRCDismissedApplication dated 15th May 2017· [2018] KEELRC 1827 (KLR)

Reuben Kioko Mutyaene v Kenya Commercial Bank Limited [2018] KEELRC 1827 (KLR)

Employment and Labour Relations Court
30 May 2018
HWHellen Wasilwa
1,128 words in judgment
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The bottom line

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Kenya's Employment Court refused to reopen a Kshs 2 million employment award, ruling that arithmetic disputes and discrimination grievances belong on appeal, not review.

What this practically means

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Executive summary

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The Claimant/Applicant moved the court by an application dated 15th May 2017 under Rule 3(1) and 16 of the Employment and Labour Relations Court Procedure Rules, Section 25(2) and 32(1)(a)-(d) of the Fair Administrative Action Act and Section 47(3) of the Employment Act, seeking review of the award of Kshs 2,041,084.00 made in the substantive suit. He alleged arithmetical errors in computing the award (gross salary of Kshs 157,506 versus the figure used), failure to consider gratuity or service pay, failure to consider violation of fundamental rights including workplace discrimination, an award disproportionate to legitimate expectations, defects in the applicable CBA's termination and suspension clauses, and non-issuance of a Certificate of Service. The Respondent opposed, arguing the application failed Rule 33(1) requirements, disclosed no new evidence, was marred by inordinate delay and was an abuse of process, the judgment having been based on the evidence and pleadings on record. The court considered Rule 33(1) and held the review jurisdiction is confined to discovery of new matter, error apparent on the face of the record, need for clarification, or other sufficient reason. The court found the trial judge had used the correct figure of Kshs 147,506 drawn from the 2011 CBA and that the alleged error was not visible. The discrimination/fundamental rights grievance was held appealable and not reviewable. The application was dismissed with no order as to costs.

Key legal issues

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01

Error apparent on the face of the record in the computation of the award

Holding

No error was established; the trial judge had used the correct gross salary figure of Kshs 147,506 as per the 2011 CBA, so the alleged error is not visible

Reasoning

The Claimant contended the award was computed on basic pay rather than gross pay of Kshs 157,506. The court noted that in evidence the Claimant stated his last salary was 135,327 plus house allowance, and the judgment had used 147,506 per the CBA of 1/3/2011. Since the figure used matched the evidence and pleadings, the alleged mistake does not stare one in the face and review fails.

p. 2
02

Whether unawarded fundamental rights/discrimination claims can ground a review

Holding

No - the issue is appealable, not reviewable

Reasoning

The court held that a party aggrieved by a failure to award damages for violation of fundamental rights, including workplace discrimination, must pursue an appeal rather than a review, since review is confined to the Rule 33(1) grounds and cannot reopen issues already litigable on appeal.

p. 2

Legal principles established

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  • A review lies only on the grounds in Rule 33(1): discovery of new and important matter, error apparent on the face of the record, need for clarification, or other sufficient reason
  • An issue that is appealable, such as failure to award damages for violation of fundamental rights, cannot be raised by way of review

Court orders

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  1. 1.The review application dated 15th May 2017 is dismissed
  2. 2.No order as to costs

Authorities

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Legislation

  • Employment and Labour Relations Court Procedure RulesRule 3(1), 16, 33(1)
  • Fair Administrative Action ActSection 5(2)(b)(c)
  • Employment ActSection 47(3), 49(4)
Jurisdiction invoked
Rule 3(1) and 16 of the Employment and Labour Relations Court Procedure Rules; Rule 33(1) review jurisdiction

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, "Reuben Kioko Mutyaene v Kenya Commercial Bank Limited [2018] KEELRC 1827 (KLR)", Case Analysis (2018). Application dated 15th May 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1827/eng@2018-05-30

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