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ELRCDismissedCause No. 1446'B' of 2012· [2019] KEELRC 1244 (KLR)

Patrick Omutia Otulia & another v Nairobi City Water & Sewerage Company Limited [2019] KEELRC 1244 (KLR)

Employment and Labour Relations Court
24 June 2019
HWHellen S. Wasilwa
990 words in judgment
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The bottom line

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The Employment Court refused to change its own judgment, confirming that disputes over how awards were calculated must go to appeal, not review.

What this practically means

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Executive summary

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The Claimants in Cause No. 1446'B' of 2012 applied by notice dated 27/9/2018 for review of the Court's judgment of 22.5.2018, which had awarded them Kshs.1,579,698.44 and Kshs.4,823,598.50 respectively against Nairobi City Water & Sewerage Company Limited. They alleged an arithmetical mistake and omissions apparent on the face of the judgment: the Court had failed to include telephone, entertainment, fuel and security guard allowances unlawfully removed from the payroll after September 2010; had wrongly deducted tax of Kshs.16,475.10 after services were withdrawn; had used a gross salary of Kshs.515,000 instead of Kshs.634,374.35 for the 1st Claimant; and had omitted leave days, related allowances and acting-capacity allowances. The Respondent opposed, arguing the application fell short of Rule 33 requirements, that no error apparent on the face of the record was shown, that the issues were technical, arguable points fit for appeal, and that the application was res judicata. Justice Wasilwa set out Rule 33 of the Employment and Labour Relations Court Rules and revisited the judgment, which had expressly held that non-remunerative allowances such as entertainment, airtime, fuel, acting and security entitlements were not payable. Since the applicants were inviting the Court to reconsider a position it had consciously adopted, there was no error apparent on the face of the record; the remedy was appeal, as a court cannot sit on appeal on its own judgment. The application was dismissed on 24th June 2019.

Key legal issues

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Whether the alleged errors in the judgment of 22.5.2018 constitute a mistake or error apparent on the face of the record under Rule 33

Holding

No error apparent on the face of the record was established; the complaint concerns conclusions the Court already reached on the remunerative status of allowances, which can only be challenged on appeal

Reasoning

Rule 33 permits review for discovery of new matter, error apparent on the face of the record, clarification or other sufficient reason. The applicants' real grievance is with the Court's substantive holding that certain allowances were non-remunerative and excludable from gross pay. That holding was deliberate, not a slip. Reconsidering it would require the Court to sit in appeal over its own judgment, which it cannot do.

p. 2

Legal principles established

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  • A court cannot sit on appeal on its own judgment; errors going to the merits of a concluded judgment are a matter for appeal, not review

Court orders

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  1. 1.The application for review dated 27/9/2018 is dismissed

Authorities

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Legislation

  • Employment and Labour Relations Court RulesRule 33
Jurisdiction invoked
Rule 33 of the Employment and Labour Relations Court Rules (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, "Patrick Omutia Otulia & another v Nairobi City Water & Sewerage Company Limited [2019] KEELRC 1244 (KLR)", Case Analysis (2019). Cause No. 1446'B' of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1244/eng@2019-06-24

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