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ELRCPartially AllowedNot stated in extract· [2023] KEELRC 1416 (KLR)

Sielei v Afya Co-operative Savings & Credit Society Limited (Cause E743 of 2019) [2023] KEELRC 1416 (KLR)

Employment and Labour Relations Court
3 May 2023
NMNzioki wa Makau
511 words in judgment
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The bottom line

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A Kenyan employment court corrected its own salary calculation error, boosting the worker's compensation by over Kshs. 550,000, but refused notice pay because review blocks appeal.

What this practically means

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Executive summary

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The Claimant, who had succeeded in his employment claim, sought review of the judgment of 20th April 2022 under Rule 33(b), contending the Court had erred by using Kshs. 92,140/- (basic salary only) instead of Kshs. 220,280/- as the multiplier factor in computing the compensatory award, and further sought notice pay of Kshs. 220,280/-. The Respondent opposed, arguing no error apparent on the face of the record had been demonstrated and that the application was an attempt to re-open concluded litigation, relying on Menginya Salim Murgani v Kenya Revenue Authority and Nyamogo & Nyamogo v Kogo. The Court found that the Claimant had pleaded a basic salary of Kshs. 92,140/- plus house allowance of Kshs. 46,100/-, so the correct computation figure was Kshs. 138,240/-, yielding total compensation of Kshs. 1,658,880/-. There was therefore an error apparent on the face of the record, being the Court's own computational mistake. The Court enhanced the award by Kshs. 553,200/-. However, the claim for notice pay was refused: that grievance, the Court held, belongs on appeal to the Court of Appeal, and by electing review the Claimant had foreclosed that avenue. Since the error was the Court's own, each party was ordered to bear its own costs of the motion. Judgment delivered at Nairobi on 3rd May 2023 by Nzioki wa Makau, J.

Key legal issues

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01

Error apparent on the face of the record in computation of the award

Holding

Review allowed; the Court used Kshs. 92,140/- instead of Kshs. 138,240/- (basic salary plus house allowance) as the multiplication factor

Reasoning

The Claimant had pleaded a basic salary of Kshs. 92,140/- and house allowance of Kshs. 46,100/-, giving Kshs. 138,240/-. The judgment used only the basic salary, producing a lower award. This was a manifest self-generated computational error requiring correction on review under Rule 33(b), not a re-opening of the merits.

p. 2
02

Entitlement to notice pay on review

Holding

Refused; notice pay is a matter for the Court of Appeal, and review as the chosen route bars that avenue

Reasoning

The Court held it could not grant notice pay in a review because the grievance lies on appeal; electing review forecloses the appeal. No notice pay was awarded.

p. 2

Legal principles established

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  • Where a court's own computation error is apparent on the face of the record, the award may be corrected on review

Court orders

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  1. 1.Review allowed to the extent that the compensatory award is enhanced by Kshs. 553,200/-, based on the correct monthly salary of Kshs. 138,240/- yielding total compensation of Kshs. 1,658,880/-
  2. 2.Claim for notice pay refused
  3. 3.Each party to bear their own costs of the motion

Authorities

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Legislation

  • ELRC (Procedure) Rules - Rule 33(b)Rule 33(b)

Cases cited (3)

  • Postal Corporation of Kenya v Andrew K. Tanui
    [2019] eKLR
  • Menginya Salim Murgani v Kenya Revenue Authority
    [2014] eKLR
  • Nyamogo & Nyamogo v Kogo
    [2001] EA 174
Jurisdiction invoked
Review jurisdiction of the ELRC under Rule 33(b) (error apparent on the face of the record)

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, "Sielei v Afya Co-operative Savings & Credit Society Limited (Cause E743 of 2019) [2023] KEELRC 1416 (KLR)", Case Analysis (2023). Not stated in extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1416/eng@2023-05-03

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