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ELRCPartially AllowedNot stated in judgment (ruling on Claimant's Notice of Motion dated 17th March, 2020)· [2021] KEELRC 1292 (KLR)

Jacob Ronoh Lagat v Board of Management Kagaki School [2021] KEELRC 1292 (KLR)

Employment and Labour Relations Court
1 July 2021
HWHellen Wasilwa
949 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 its own overtime calculation error, awarding a worker an extra Kshs. 50,000 against Maasai Mara University.

What this practically means

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Executive summary

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This ruling of the Employment and Labour Relations Court determines the claimant's notice of motion dated 17th March 2020, brought under rule 33 of the ELRC (Procedure) Rules 2016 and Order 45 of the Civil Procedure Rules, seeking review of the judgment of Justice M. Mbaru delivered on 26th September 2019, in which the claimant had succeeded against the respondent. The claimant contended that the court erred in calculating overtime, arriving at Kshs. 40,514 instead of Kshs. 94,514, and sought correction of that figure. The respondent, through a replying affidavit sworn by its director Prof. Miriam Kinyua, opposed the application as an abuse of process brought in bad faith after an inordinate six-month delay, noting an earlier similar application withdrawn in November 2019 with unpaid costs of Kshs. 2,500, and arguing that any overtime computation should be limited by section 90 of the Employment Act to the period from December 2013 given the claimant's rotational work. Both parties filed written submissions; the claimant relied on section 80 of the Civil Procedure Act, Order 45, section 16 of the ELRC Act, rule 33 and the Nyamongo and Nyamongo v Kogo decision, explaining the delay by reason of defects in the earlier application, the Christmas season and COVID-19. The court agreed that an error was apparent in the overtime calculation: had the underpayment been computed per paragraph 9 of the claim, the correct figure would have been Kshs. 151,177.3, but part of the claim was time-barred beyond April 2014. Since the motion sought only Kshs. 94,514 in place of 40,514, the court allowed review only as prayed, adding Kshs. 50,000 to the overtime award, with costs to the applicant.

Key legal issues

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01

Error apparent on the face of the record in calculation of overtime

Holding

There was an error in the judgment: overtime was calculated at Kshs. 40,514 instead of the correct figure, and the court corrected it on review

Reasoning

The claimant argued the court computed overtime at Kshs. 40,514 instead of Kshs. 94,514. The court, revisiting its computation, agreed that in arriving at the underpayment it should have calculated per paragraph 9 of the claim and accepted that an error existed on the face of the judgment, justifying review under the review jurisdiction invoked.

p. 2
02

Limitation of the underpayment claim under section 90 of the Employment Act

Holding

Part of the underpayment claim was time barred as the claim was filed in April 2017, so any prayer beyond April 2014 was statute-barred

Reasoning

The respondent argued that overtime should run only from December 2013 in light of section 90 of the Employment Act. The court observed that the claim was filed in April 2017 and that claims beyond April 2014 were time barred, which constrained the recomputation of overtime to the period within limitation.

p. 2
03

Delay in bringing the review application

Holding

The court did not dismiss the application for delay despite the respondent's objection, allowing review in the interest of justice

Reasoning

The respondent contended the application, filed about six months after judgment, was inordinate delay and an abuse of process, noting an earlier similar application withdrawn in November 2019 with unpaid costs. The applicant explained withdrawal errors, the Christmas season and COVID-19. The court did not found its decision on delay.

p. 2

Legal principles established

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  • A court may review its own judgment to correct an error apparent on the face of the record under section 80 of the Civil Procedure Act, Order 45 of the Civil Procedure Rules, section 16 of the Employment and Labour Relations Court Act and Rule 33 of the ELRC (Procedure) Rules 2016

Court orders

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  1. 1.The judgment of 26th September, 2019 is reviewed to correct the error in the calculation of overtime
  2. 2.Overtime award is varied from Kshs. 40,514 by adding Kshs. 50,000 (the amount prayed for being 94,514 instead of 40,514)
  3. 3.Costs of the application to the applicant

Authorities

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Legislation

  • Civil Procedure Actsection 80
  • Civil Procedure Rules 2010Order 45
  • Employment and Labour Relations Court Actsection 16
  • Employment and Labour Relations Court (Procedure) Rules 2016rule 33
  • Employment Actsection 90

Cases cited (1)

  • Nyamongo and Nyamongo –v- Kogo
    [2001] I EA 170
Jurisdiction invoked
Rule 33 of the Employment and Labour Relations Court (Procedure) Rules 2016, section 16 of the Employment and Labour Relations Court Act and Order 45 of the Civil Procedure Rules 2010

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, "Jacob Ronoh Lagat v Board of Management Kagaki School [2021] KEELRC 1292 (KLR)", Case Analysis (2021). Not stated in judgment (ruling on Claimant's Notice of Motion dated 17th March, 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1292/eng@2021-07-01

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