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ELRCDismissedCause No E146 of 2021· [2023] KEELRC 654 (KLR)

Fredrick Ngatia t/a Ngatia & Associates Advocates v Jumba (Cause E146 of 2021) [2023] KEELRC 654 (KLR)

Employment and Labour Relations Court
15 March 2023
JGJacob Gakeri
2,226 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employer lost its bid to overturn a house allowance award because disagreeing with a judgment is an appeal, not a review.

What this practically means

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Executive summary

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The Appellant/Applicant moved the Employment and Labour Relations Court at Nairobi by Notice of Motion dated 24th November 2022 under Rule 33 of the ELRC (Procedure) Rules, 2016, seeking review of the court's judgment of 31st October 2022 in so far as it upheld an award of house allowance of Kshs.101,250/= to the respondent. The applicant, through an affidavit sworn by Fredrick Ngatia, contended that the respondent was employed on a consolidated salary, never demanded house allowance during employment, and that the award was an error apparent on the face of the record, occasioning prejudice as the respondent threatened to execute for Kshs.480,875/=. The respondent opposed, asserting no decree had yet been extracted, that the applicant's computation omitted interest and costs, and that the house allowance issue had been litigated and decided on merit at trial; reliance was placed on JKN v HWN, National Bank of Kenya v Ndungu Njau and Unilever Tea (K) Ltd v Kibuma. The court framed a single issue: whether the application met the threshold for review. Applying National Bank of Kenya v Ndungu Njau, Muyodi v Industrial Commercial Development Corporation, Nyamongo & Nyamongo v Kogo and Maurice Otieno Owiny v Mombasa Container Terminal, the court held that an error apparent on the face of the record must be self-evident and require no elaborate argument. The employer had breached sections 9(1) and 20(1) of the Employment Act by failing to produce a written contract or pay statement, and housing allowance is a statutory right under section 31 which an employee may raise after termination even if never demanded during employment. The alleged error was an evidential matter requiring factual argument and amounted to contesting the merits - a ground of appeal, not review. The application was dismissed with costs on 15th March 2023.

Key legal issues

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Whether the award of house allowance of Kshs.101,250/= constituted an error apparent on the face of the record warranting review

Holding

No. The alleged error is an evidential dispute requiring factual argument; where the employer failed to produce a written contract or pay statement showing a consolidated salary, there is no self-evident error

Reasoning

Rule 33 of the ELRC Procedure Rules governs review. An error apparent on the face of the record must be self-evident, not requiring elaborate argument. The employer alleged a consolidated salary but breached sections 9(1) and 20(1) of the Employment Act by not producing a written contract or pay statement. Housing allowance is a statutory right under section 31, and non-demand during employment does not extinguish it. The complaint is thus an evidential issue and a merits disagreement, which lies on appeal, not review.

p. 5

Legal principles established

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  • An error apparent on the face of the record must be self-evident and not require elaborate argument to establish
  • Housing allowance is a statutory right for all employees and failure to demand it during employment does not deprive the employee of the right to raise it after termination
  • Contesting the merits of a judgment is a ground for appeal, not review

Court orders

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  1. 1.The Notice of Motion Application dated 24th November 2022 is dismissed with costs

Authorities

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Legislation

  • Employment and Labour Relations Court (Procedure) Rules, 2016Rule 33(1)(b), 33(2), 33(3)
  • Employment ActSection 9(1)(a), 20, 31
  • Constitution of KenyaArticle 159(2)(d), 48
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B

Cases cited (6)

  • JKN V HWN
    [2015] eKLR
  • National Bank of Kenya V Ndungu Njau
    [1997] eKLR
  • Unilever Tea (K) Ltd V Richard Ombati Kibuma
    [2021] eKLR
  • Muyodi V Industrial Commercial Development Corporation & another
    [2006] EA 243
  • Nyamongo and Nyamongo Vs Kogo
    [2001] EA 174 (also cited as [2001] EA 170)
  • Maurice Otieno Owiny V Mombasa Container Terminal Ltd & another
    [2017] eKLR
Jurisdiction invoked
Rule 33(1)(b), 33(2), 33(3) 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, "Fredrick Ngatia t/a Ngatia & Associates Advocates v Jumba (Cause E146 of 2021) [2023] KEELRC 654 (KLR)", Case Analysis (2023). Cause No E146 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/654/eng@2023-03-15

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