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ELRCDismissedCause No 2203 of 2016· [2023] KEELRC 414 (KLR)

Chang’awa v Gertrude’s Children Hospital (Cause 2203 of 2016) [2023] KEELRC 414 (KLR)

Employment and Labour Relations Court
16 February 2023
3,558 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court dismissed an employer's attempt to review a Kshs.3.5 million award, confirming that review only works for obvious errors, not weak arguments.

What this practically means

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Executive summary

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The Respondent/Applicant, through a Notice of Motion dated 20th July 2022, sought review of the ELRC judgment of 6th July 2022 (which had awarded the Claimant Kshs.3,579,897.60 as housing allowance) on the ground of error apparent on the face of the record, together with a stay of execution. The Applicant argued that the 2015-2017 CBA, particularly page 35, provided for consolidated salary inclusive of housing allowance, and that the payslip was not the contractual instrument. The Claimant countered that the CBA did not state his salary, that the payslip showing 'Basic Salary' with no housing allowance was the only evidence of his earnings, and that the CBA's allowances clause omitted housing allowance. Relying on Rule 33 of the ELRC (Procedure) Rules, 2016 and the Muyodi test, the court held that an error apparent on the face of the record must be obvious and not establishable by a long drawn process of reasoning. The phrase 'consolidated salary' appeared only in an unauthenticated sample letter of appointment on page 35 of the CBA, not in the substantive clauses on Wages, Allowances or Housing, and the Applicant did not avail the Claimant's actual employment letter or evidence of notice of consolidation. The alleged error was therefore not self-evident. On the continuous injury question, the court noted the suit was filed within twelve months of termination, so section 90 of the Employment Act had no adverse effect. The application was dismissed with no orders as to costs on 16th February 2023.

Key legal issues

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01

Whether an error apparent on the face of the record existed in the judgment of 6th July 2022 regarding housing allowance and consolidated salary

Holding

No error apparent on the face of the record was demonstrated; the CBA's substantive clauses (Wages, Allowances, Housing) made no reference to consolidation of salary, and only the sample letter of appointment on page 35 used the phrase 'consolidated salary'

Reasoning

The court reviewed the CBA clauses and found that consolidation of salary appeared only in a sample, unauthenticated letter of appointment, not in the substantive clauses. Determining whether the salary was consolidated would require a long drawn examination of the entire CBA and its schedules, which falls outside the narrow scope of Rule 33(1)(b). The Applicant also did not avail the Claimant's actual employment letter and adduced no evidence of notifying the Claimant of consolidation.

p. 7
02

Whether the principle of continuous injury under section 90 of the Employment Act applied

Holding

The doctrine was inapplicable/had no adverse effect because the Claimant filed suit within twelve months of termination of employment (terminated 4th May 2016, suit filed 28th October 2016)

Reasoning

The court adopted the definition of continuing injury and the Court of Appeal's elaboration in G4S, noting that claims based on continuing injury must be filed within twelve months of cessation. Since the suit was filed within that window, the doctrine had no adverse effect on the claim for house allowance, and the court agreed with the Respondent's submission on this point.

p. 8

Legal principles established

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  • An error apparent on the face of the record must be obvious and self-evident; it cannot be established by a long drawn process of reasoning or on points where there may conceivably be two options
  • If a view adopted by the court in the original record is a possible one, it cannot be an error on the face of the record; a wrong view is a ground for appeal, not review
  • A claim based on continuing injury under section 90 of the Employment Act must be filed within twelve months after the cessation of the injury
  • A payslip is not a contractual document; the letter of appointment is the primary contractual document in an employment relationship

Court orders

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  1. 1.The Notice of Motion dated 20th July 2022 seeking review of the judgment delivered on 6th July 2022 and stay of execution is dismissed
  2. 2.No orders as to costs

Authorities

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Legislation

  • Employment ActSection 90
  • Employment and Labour Relations Court (Procedure) Rules, 2016Rule 33
  • Civil Procedure Rules, 2010Order 45
  • Limitation of Actions ActSection 4(1)
  • Constitution of KenyaArticles 159(2)(d) and 48
  • Civil Procedure ActSection 1B

Cases cited (8)

  • Charity Wambui Muriuki v M/s Total Security Surveillance Ltd
    (2017) eKLR
  • Stephen O. Edewa v Lavington Security Guards
    (2019) eKLR
  • Grain Pro Kenya Inc. Ltd v Andrew Waithaka Kiragu
    (2019)
  • Muyodi v Industrial & Commercial Development Corporation & another
    (2006) eKLR
  • Nyamongo & Nyamongo v Kogo
    (2001) EA 174
  • Chandrakhant Joshibhai Patel v R
    (2004) TRL 2018
  • Johnson Kazungu v Kenya Marine & Fisheries Research Institute
    (2021) eKLR
  • G4S Security Services (K) Ltd v Joseph Kamau & 468 others
    (2018) eKLR
Jurisdiction invoked
ELRC review jurisdiction under Rule 33 of the Employment and Labour Relations Court (Procedure) Rules, 2016

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, "Chang’awa v Gertrude’s Children Hospital (Cause 2203 of 2016) [2023] KEELRC 414 (KLR)", Case Analysis (2023). Cause No 2203 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/414/eng@2023-02-16

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