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ELRCPartially AllowedCause No 776 of 2017· [2021] KEELRC 1273 (KLR)

Loice Apiyo Omoga v Bandari Sacco Society Limited [ (Cause 776 of 2017) [2021] KEELRC 1273 (KLR)

Employment and Labour Relations Court
7 July 2021
1,104 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employment court corrected an error in its own judgment but still dismissed the worker's unfair termination claim because her fixed-term contract had simply expired.

What this practically means

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Executive summary

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This is a ruling on a review application under Rule 33 of the Employment and Labour Relations Court (Procedure) Rules, 2016, seeking review of a judgment delivered on 24th February 2021 that dismissed the Claimant's employment claim. The dismissal rested on two grounds: the Claimant failed to plead specific reliefs as required by Rule 4(g), instead relying on a demand letter; and she was engaged on a fixed-term contract that expired rather than being unfairly terminated. The Claimant's counsel deponed that at the hearing on 4th November 2019, an oral amendment to paragraph 18 of the Statement of Claim was allowed without objection, converting the demands in the letter of demand into specific prayers. The Court found an obvious error apparent on the face of the record, explaining that the Judgment was prepared after the Trial Judge's transfer from Mombasa to Nairobi, under pressure to clear outstanding files, and the file reached Nairobi more than a year after proceedings closed. The Court apologised for the oversight, reviewed paragraph 15 of the Judgment, and expunged the words 'lack of specific reliefs pleaded'. However, the substantive findings were unaffected: the Claimant was on a fixed-term contract expiring 31st October 2016, did not prove unfair termination under Section 47(5) of the Employment Act 2007, and conceded indebtedness to the Respondent. The orders dismissing the Claim were affirmed, with no order on costs.

Key legal issues

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01

Error apparent on the face of the record

Holding

The Judgment overlooked the oral amendment to paragraph 18 of the Statement of Claim allowed on 4th November 2019, constituting an error apparent on the face of the record warranting review

Reasoning

The Court apologised for overlooking the oral amendment made at the outset of the hearing. The Judgment was prepared after the Trial Judge had been transferred from Mombasa to Nairobi, under pressure to clear outstanding matters, and the file was made available more than a year after proceedings closed. The amendment was allowed without objection and converted the demands in the letter of demand into specific prayers, curing the pleading defect under Rule 4(g).

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02

Unfair termination on a fixed-term contract

Holding

The Claimant was on a fixed-term contract which expired on 31st October 2016; she did not prove unfair termination, and the dismissal of the Claim stands

Reasoning

Barring the pleading defect, the Court had found the Claimant worked under a fixed-term contract which expired automatically rather than being terminated. She handed over her office on 28th October 2016, did not prove unfair termination under Section 47(5) of the Employment Act, and the prayer for November 2016 salary had no basis since mutuality of obligations ended on 31st October 2016. She also conceded indebtedness to the Respondent.

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Legal principles established

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  • Review jurisdiction under Rule 33 of the E&LRC (Procedure) Rules is an important mechanism for the Court to clean its record where an error apparent on the face of the record exists
  • A review that rectifies an error on pleadings does not reopen findings of fact unaffected by that error

Court orders

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  1. 1.Paragraph 15 of the Judgment delivered on 24th February 2021 is reviewed with the words 'lack of specific reliefs pleaded' expunged from the record
  2. 2.The orders dismissing the Claim, with no order on the costs, shall stand

Authorities

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Legislation

  • Employment and Labour Relations Court (Procedure) Rules, 2016Rule 4(g)
  • Employment and Labour Relations Court (Procedure) Rules, 2016Rule 33
  • Employment Act, 2007Section 47(5)
Jurisdiction invoked
Rule 33 of the Employment and Labour Relations Court (Procedure) Rules, 2016 (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, "Loice Apiyo Omoga v Bandari Sacco Society Limited [ (Cause 776 of 2017) [2021] KEELRC 1273 (KLR)", Case Analysis (2021). Cause No 776 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1273/eng@2021-07-07

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