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ELRCDismissedNot stated· [2023] KEELRC 1429 (KLR)

Gikonyo v County Government of Lamu & 2 others (Petition E007 of 2021) [2023] KEELRC 1429 (KLR)

Employment and Labour Relations Court
15 June 2023
MMM. Mbarũ
1,783 words in judgment
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The bottom line

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A Kenyan employment court refused to increase a compensation award because the worker's own court documents stated the lower salary figure.

What this practically means

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Executive summary

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The petitioner filed an application dated 3 June 2022 under Rule 33 of the Employment and Labour Relations Court (Procedure) Rules, 2016 seeking review of the judgment and decree of 4 April 2022, which had awarded him six months' salary as compensation computed on Ksh.133,870 per month. He sought correction of the multiplier to his alleged gross salary of Ksh.246,870, yielding Ksh.1,481,220 instead of Ksh.803,220, contending an error apparent on the face of the record since Section 49(1)(c) of the Employment Act requires use of gross salary. The 3rd respondent, through a replying affidavit sworn by John Mburu, opposed the application as bad in law and a waste of court time. Both parties filed written submissions. The court reviewed Rule 33's grounds for review and the jurisprudence distinguishing a mere erroneous decision from an error apparent on the face of the record. It found that the petitioner himself pleaded a salary of Ksh.133,870 in his petition, supporting affidavit, written submissions and final orders, that the Offer of Appointment reflected the same rate, and that no payment statement showing additional benefits was filed. As parties are bound by their pleadings, the court could not apply figures outside them. The application was dismissed with each party bearing their own costs, delivered in open court at Mombasa on 15 June 2023 by M. Mbarũ, Judge.

Key legal issues

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01

Whether the judgment of 4 April 2022 contained an error apparent on the face of the record by applying basic rather than gross salary

Holding

No error apparent on the face of the record; the petitioner pleaded a monthly salary of Ksh.133,870 in his petition, supporting affidavit and final orders, and the Offer of Appointment reflected the same rate, so the court could not apply any other figure

Reasoning

Review under Rule 33 requires an error apparent on the face of the record. The petitioner's own pleadings, supporting affidavit, written submissions and Offer of Appointment all stated Ksh.133,870, with no payment statement filed showing other benefits. As parties are bound by their pleadings, the court could not go beyond what was prayed. An alleged error requiring reasoning to establish is not apparent on the face of the record; it would be grounds for appeal, not review.

p. 4
02

Whether Section 49(1)(c) of the Employment Act obliges use of gross salary in computing compensation regardless of pleadings

Holding

While the statute directs use of gross monthly wage or salary, that figure must be grounded in the pleadings, payment statements or evidence; no other gross figure was before the court

Reasoning

Section 49(1)(c) requires gross monthly wage or salary when tabulating terminal dues, whether pleaded or not. However, that gross figure is determined from the pleadings, filed payment statements or the parties' evidence. The petitioner pleaded Ksh.133,870 and filed no payment statement with the petition, so no other salary was before the court at judgment.

p. 3

Legal principles established

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  • When calculating terminal dues under Section 49(1)(c) of the Employment Act, the applicable rate is the gross monthly wage or salary the employee was last earning, based on the pleadings, payment statements or evidence of the parties
  • An error which is not self-evident and requires a long process of reasoning is not an error apparent on the face of the record justifying review under Section 80

Court orders

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  1. 1.Application dated 3 June 2022 dismissed
  2. 2.Each party to bear own costs

Authorities

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Legislation

  • Employment and Labour Relations Court (Procedure) Rules, 2016Rule 33(1)(1)(b), (2) and (3)
  • Civil Procedure ActSection 80
  • Employment Act, 2007Section 49(1)(c), 49(2), 49(c)
  • Civil Procedure RulesOrder 2 rule 6(1)

Cases cited (7)

  • Paul Mwaniki v National Hospital Insurance Fund Board of Management
    [2020] eKLR
  • Postal Corporation of Kenya v Andrew K Tanui
    [2019] eKLR
  • Daniel Otieno Migore v South Nyanza Sugar Co. Ltd
    [2018] eKLR
  • Republic v Advocates Disciplinary Tribunal ex parte Apollo Mboya
    [2019] eKLR
  • Hosea Nyandika Mosagwe & 2 others v County Government of Nyamira
    [2022] eKLR
  • Muyodi v Industrial and Commercial Development Corporation & Anor
    [2006] 1 EA 243
  • Nyamogo and Nyamogo v Kogo
    [2001] EA 174
Jurisdiction invoked
Rule 33(1)(1)(b), (2) and (3) of the Employment and Labour Relations Court (Procedure) Rules, 2016 and Section 80 of the Civil Procedure Act

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, "Gikonyo v County Government of Lamu & 2 others (Petition E007 of 2021) [2023] KEELRC 1429 (KLR)", Case Analysis (2023). Not stated. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1429/eng@2023-06-15

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