Bernard E. N. Gachuri v Jamii Bora Bank Limited [2021] KEELRC 1409 (KLR)
The bottom line
#A Kenyan employment court corrected its own judgment, awarding accrued leave pay and a certificate of service, but sent the pension claim to pension trustees.
What this practically means
#Executive summary
#Key legal issues
#Whether there is an error apparent on the face of the record warranting review
Yes - paragraph 57 of the judgment erroneously found terminal dues were not sought when they were pleaded and submissions made on them
The claimant specifically pleaded leave pay, pension access and certificate of service in the Memorandum of Claim at paragraphs 13 and 14. The respondent made submissions on those claims, summarised at paragraphs 42 and 43 of the judgment. Yet paragraph 57 stated the claimant had not sought terminal dues in his Memorandum of Claim. That finding contradicts the judgment's own analysis and the pleadings, and is therefore an error apparent on the face of the record justifying review under Rule 33(1)(b).
Whether the respondent's functus officio objection defeats the review
No - the court retained jurisdiction to review under the sufficient-cause and error-apparent grounds
The respondent invoked Menginya Salim Murgani v Kenya Revenue Authority to argue the court was functus officio after delivering judgment and making payments. The court instead applied Rule 33 of the ELRC Procedure Rules and the overriding objective, holding that review for sufficient cause should be readily allowed where the overriding objective achieves fair and just disposal. The error-apparent ground was established, so review was granted notwithstanding the functus officio objection.
Quantum and basis of accrued leave pay
39 days at Ksh.187,000 based on basic salary of Ksh.140,000
The Memorandum of Claim at paragraph 29(ii) claimed 39 leave days at Ksh.187,000, not 49 days at Ksh.234,000. Leave pay is computed on basic salary rather than gross pay. The claimant's June 2015 payment statement showed basic pay of Ksh.140,000 per month, and the judgment had addressed 39 leave days. The court therefore rectified the award to 39 days at Ksh.187,000.
Legal principles established
#- An application for review of an ELRC judgment must be premised on Rule 33 of the ELRC (Procedure) Rules, 2016
- Where there is an error apparent on the face of the record, the court may review its decision to conform to its findings
- A certificate of service is due at the end of employment under section 51 of the Employment Act regardless of the reason for termination
- Leave pay is assessed on basic salary, not gross salary
Court orders
#- 1.The application dated 30th October, 2020 is found with merit and the judgment delivered on 16th July, 2020 is reviewed
- 2.Leave pay due for 39 days at Ksh.187,000 awarded
- 3.A certificate of service shall be issued pursuant to section 51 of the Employment Act, 2007
- 4.Each party shall pay own costs
- Jurisdiction invoked
- Rule 33 of the Employment and Labour Relations Court (Procedure) Rules, 2016 and Order 45 of the Civil Procedure Rules (review of judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Bernard E. N. Gachuri v Jamii Bora Bank Limited [2021] KEELRC 1409 (KLR)", Case Analysis (2021). Application dated 30th October, 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1409/eng@2021-03-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.