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ELRCDismissedNotice of Motion dated 29th November 2018· [2019] KEELRC 196 (KLR)

Timothy Stephen Mbogho v Kenya Safari Lodges and Hotels Limited [2019] KEELRC 196 (KLR)

Employment and Labour Relations Court
5 December 2019
LNLINNET NDOLO
650 words in judgment
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The bottom line

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A Kenyan employment court refused to change its own judgment, confirming that disagreements about factual findings must be resolved through appeal, not review.

What this practically means

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Executive summary

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The Claimant had obtained judgment on 1st November 2018 awarding Kshs. 985,542 as three months' salary compensation for unfair termination of employment. He then filed a Notice of Motion dated 29th November 2018 seeking review of that judgment on the ground of an error apparent on the face of the record. He contended that although the judgment recorded that he had been fully paid his dues regarding notice and leave pay, he had in fact only received Kshs. 250,000 out of Kshs. 899,472.68, leaving a balance of Kshs. 649,472.67, and that the Respondent had produced only a bank slip for Kshs. 250,000 in proof of payment. The Respondent, through a replying affidavit of its Human Resource Manager Eunice Nzilani, opposed the application, arguing that the Court having declined to award notice pay as pleaded, the Claimant was not entitled to it, and further claimed that the Claimant owed the Respondent Kshs. 315,000. The Court traced its review power to Section 16 of the Employment and Labour Relations Court Act and Rule 33 of the Procedure Rules, and noted the application was brought under Rule 33(1)(b). However, on reading the grounds and supporting affidavit, the Court found the Claimant was actually aggrieved by the finding that the notice and leave pay prayers were spent. Citing Grace Akinyi Kemunto v Gladys Kemunto Obiri [2016] eKLR, the Court held that misapprehension of fact or law is not a ground for review at the trial court, being a matter for appeal. The application was dismissed, with each party bearing their own costs. Judgment delivered at Mombasa on 5th December 2019 by Linnet Ndolo, Judge.

Key legal issues

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Scope of review under Rule 33(1)(b) - error apparent on the face of the record

Holding

The application did not disclose an error apparent on the record but a disagreement with the Court's finding of fact on notice and leave pay, which is beyond the review power

Reasoning

Rule 33(1)(b) permits review only for a mistake or error apparent on the face of the record. The Claimant's real complaint was that the Court wrongly found the notice and leave pay prayers spent. Such misapprehension of fact or law is not reviewable at the trial court; the correct remedy is appeal. Accordingly the application failed and was dismissed with no order as to costs.

p. 2

Legal principles established

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  • Misapprehension of fact or law by the trial court is not a ground for review; it is a matter for appeal
  • The ELRC's power to review its own decisions derives from Section 16 of the ELRC Act and Rule 33 of the Procedure Rules

Court orders

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  1. 1.The Claimant's Notice of Motion dated 29th November 2018 is dismissed
  2. 2.Each party to bear their own costs

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)

  • Grace Akinyi Kemunto v Gladys Kemunto Obiri
    [2016] 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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Later judgments citing this (2)

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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, "Timothy Stephen Mbogho v Kenya Safari Lodges and Hotels Limited [2019] KEELRC 196 (KLR)", Case Analysis (2019). Notice of Motion dated 29th November 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/196/eng@2019-12-05

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