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ELRCPartially AllowedCause No 915 of 2016· [2022] KEELRC 290 (KLR)

Richard Isaac Mwangangi v Kenya National Examination Council [2022] KEELRC 290 (KLR)

Employment and Labour Relations Court
22 April 2022
JRJames Rika
824 words in judgment
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The bottom line

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What this practically means

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Executive summary

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The Claimant applied for review of the judgment delivered in his favour on 9th April 2021, contending that the Court had failed to consider his prayer for a balance of annual leave days, for which he claimed Kshs. 277,725 being 45 days. He invoked Order 45 Rule 2para 1 of the Civil Procedure Rules, 2010. The Respondent opposed through the affidavit of Befly J. Bisem, asserting that the Court had in fact considered the prayer and found it bare and unsubstantiated, and that its stated readiness to pay was conditional on the prayer being established. The application was determined on affidavits and submissions. The Court found the Claimant had pleaded the leave balance ambiguously, but that a March 2016 payslip authored by the Respondent and adopted in evidence showed, in small print, an entitlement of 30 days with 15 brought forward, nil utilized and a balance of 45 days. That uncontroverted document established the prayer, and the Court held it had erred in concluding otherwise. The Court clarified that review jurisdiction is exercised under Rule 33 of the E&LRC [Procedure] Rules, 2016, and that Order 51 of the Civil Procedure Rules has no application in its proceedings. Allowing the review, the Court reviewed the judgment, adding to the award 45 days of annual leave at Kshs. 277,725, alongside compensation of 10 months' gross salary and notice pay, totalling Kshs. 3,425,375, ordered a Certificate of Service to issue, and made no order on costs.

Key legal issues

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01

Whether the prayer for annual leave days was established despite being pleaded ambiguously

Holding

The Court was in error to conclude the prayer was not established, since the Respondent's own March 2016 payslip, part of the record, unambiguously showed a leave balance of 45 days

Reasoning

The Claimant pleaded 'leave days balance' without specificity and the Judgment had found the prayer bare. However, the Claimant had adopted as evidence a March 2016 payslip authored by the Respondent, which in small print showed 30 days entitlement, 15 days brought forward, nil utilized and a balance of 45 days. That document was uncontroverted and spoke for itself, so the earlier finding could not stand.

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02

The proper legal basis for review in this Court

Holding

Review is governed by Rule 33 of the E&LRC [Procedure] Rules, 2016; the Civil Procedure Rules provisions invoked by the Claimant do not apply

Reasoning

The Claimant invoked Order 45 Rule 2para 1 and Order 51 of the Civil Procedure Rules, 2010. The Court held that these provisions have no application in proceedings before the Employment and Labour Relations Court, but proceeded to allow the application in exercise of its review jurisdiction under Rule 33 of the E&LRC [Procedure] Rules, 2016, together with any other enabling laws.

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Legal principles established

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  • Review jurisdiction of the Employment and Labour Relations Court is exercised under Rule 33 of the E&LRC [Procedure] Rules, 2016, not the Civil Procedure Rules
  • A litigant must clearly draw the Court's attention to unclear documents in evidence and submissions; ambiguous prayers must be illuminated by the party relying on them

Court orders

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  1. 1.The application for review of Judgment dated 31st May 2021 filed by the Claimant is allowed
  2. 2.Judgment delivered on 9th April 2021 is reviewed so that the Respondent shall pay compensation for unfair termination equivalent to 10 months' gross salary at Kshs. 2,861,500; notice at Kshs. 286,150; and 45 days of annual leave at Kshs. 277,725 - total Kshs. 3,425,375
  3. 3.A Certificate of Service to issue
  4. 4.No order on the costs

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 45 Rule 2 [1]
  • Civil Procedure Rules, 2010Order 51
  • Employment and Labour Relations Court [Procedure] Rules, 2016Rule 33
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, "Richard Isaac Mwangangi v Kenya National Examination Council [2022] KEELRC 290 (KLR)", Case Analysis (2022). Cause No 915 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/290/eng@2022-04-22

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