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ELRCPartially Allowed· [2018] KEELRC 2373 (KLR)

Mercy Marchiya v Africa Population and Health Research Centre [2018] KEELRC 2373 (KLR)

Employment and Labour Relations Court
2 March 2018
MNMathews N. NdumaMOMaureen Onyango
579 words in judgment
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The bottom line

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Kenya's Employment Court dismissed an employer's review application but corrected a small arithmetic error, cutting a compensation award from 10½ months' salary to 10 months and 3 days.

What this practically means

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Executive summary

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This is a ruling on an application for review brought by the Respondent/Applicant (the employer) seeking review of the court's judgment of 18 August 2017, in which the Claimant was awarded compensation of USD 61,249.65 for unlawful and unfair termination of employment. The applicant raised five principal grounds: that the compensation was neither pleaded nor particularized; that the court exceeded the statutory maximum under section 49 of the Employment Act; that the court erred in relying on Pravin Bowry v EACC; that the judgment contained an arithmetical error in computing the unexpired term of the contract as 10½ months; and that new and important evidence had been discovered. The Claimant opposed the application, with counsel for the Claimant conceding a mistake on the face of the record - the unexpired term was 10 months and 3 days, not 10½ months - and asking only for correction to that extent. The court found the applicant had not satisfied the requirements of Rule 33 of the ELRC (Procedure) Rules 2010: the claim for compensation was specifically pleaded; the award of 10½ months' salary was within the statutory maximum of 12 months under section 49(1)(c); and the complaint about the precedent was a ground of appeal, amounting to asking the court to sit on appeal over its own judgment. The review application was dismissed, save that the award was varied and substituted with compensation equivalent to 10 months and 3 days' salary. No costs order was made.

Key legal issues

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01

Requirements for review under Rule 33 ELRC (Procedure) Rules 2010

Holding

The application for review fails except for the arithmetical mistake on the face of the record

Reasoning

The court held the claim for compensation had been pleaded, the award was within the statutory maximum, and the complaint about the precedent was a ground of appeal. However, counsel for the claimant conceded the unexpired term was miscalculated, justifying a limited correction on the face of the record from 10½ months to 10 months and 3 days.

p. 1
02

Review versus appeal

Holding

A party cannot invite the court to sit on appeal over its own judgment under the guise of review

Reasoning

The respondent's grounds two and three attacked the correctness of the judgment on law and fact, which are appellate grounds. The court emphasized that such grievances belong on appeal and declined to revisit its own reasoning in the guise of review.

p. 2

Legal principles established

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  • An allegation that a court erred in fact or law in relying on a precedent is a ground of appeal, not a ground for review
  • Compensation for unfair termination cannot exceed the statutory maximum of 12 months' salary under section 49(1)(c) of the Employment Act

Court orders

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  1. 1.The application for review is dismissed
  2. 2.The award of equivalent of 10 ½ months' salary in compensation is varied and substituted with an award of 10 months and 3 days salary in compensation for the unlawful and unfair termination of employment

Authorities

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Legislation

  • Employment Actsection 49(4); section 49(1)(c)
  • Employment and Labour Relations Court (Procedure) Rules 2010Rule 33

Cases cited (1)

  • Pravin Bowry v EACC
Jurisdiction invoked
Rule 33 of the Employment and Labour Relations Court (Procedure) Rules 2010 (review of the court's own judgment)

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, "Mercy Marchiya v Africa Population and Health Research Centre [2018] KEELRC 2373 (KLR)", Case Analysis (2018). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2373/eng@2018-03-02

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