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ELRCAllowedNot stated in the judgment excerpt (Notice of Motion dated 24th May 2023)· [2023] KEELRC 2711 (KLR)

Parmar v African Express Airways (Employment and Labour Relations Cause 1434 of 2017) [2023] KEELRC 2711 (KLR)

Employment and Labour Relations Court
31 October 2023
1,811 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employment court corrected its own judgment, nearly tenfold increasing an employee's compensation to USD 27,000 after spotting a simple maths error.

What this practically means

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Executive summary

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The Claimant, Jameel Ashvinkumar Parmar, filed a Notice of Motion dated 24th May 2023 under Order 45 Rules 1 and 2 and Order 50 Rule 1 of the Civil Procedure Rules 2010 and Sections 1A, 1B and 3A of the Civil Procedure Act, seeking review of the judgment delivered on 27th April 2023 in his favour against the Respondent. He identified two errors on the face of the judgment: first, that paragraph 46 awarded him six months' gross salary as compensatory relief under section 49(1)(c) of the Employment Act, but computed that figure as USD 2,700 rather than USD 27,000, given his uncontroverted monthly gross salary of USD 4,500; and secondly, that the USD 6,000 awarded in paragraph 40 for extra duties was omitted from the final awards in paragraph 47 of the judgment. The application was unopposed by the Respondent. The court, per Ocharo Kebira J, invoked the slip-rule jurisdiction under section 99 of the Civil Procedure Act, holding that this provision is the most appropriate vessel for rectifying clerical or arithmetical mistakes, whether invoked suo motu or by a party, and that the jurisdiction is unfettered. Relying on National Bank of Kenya Ltd v Ndungu Njau and Nguruman Limited v Attorney General, the court held that a defect may only be corrected where the correction gives effect to the court's intention at the time of judgment. Finding the court's express intention was to award six months' gross salary, the court allowed the application: the compensation award was reviewed to USD 27,000 in place of USD 2,700, paragraphs 46 and 47(E) were amended accordingly, and the USD 6,000 for extra duties was granted under paragraph 47(E)(i). Orders were delivered on 31st October 2023.

Key legal issues

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01

Whether the miscomputation of compensation (USD 2,700 instead of USD 27,000) is an error apparent on the face of the record

Holding

Yes - it was a clerical/arithmetic error curable under section 99 of the Civil Procedure Act

Reasoning

The court found the claimant's uncontroverted monthly gross salary of USD 4,500 meant six months' gross salary is USD 27,000. The court's express intention in paragraph 46 of the judgment was to award six months' gross salary, so the tabulation at USD 2,700 was an accidental slip not affecting the substance of the judgment, and section 99 empowers its correction.

p. 4
02

Whether the omission of the USD 6,000 extra-duties award from the final orders was reviewable

Holding

Yes - the failure to capture the award made in paragraph 40 in paragraph 47 was an error curable under section 99 or Order 45

Reasoning

The judgment had expressly awarded USD 6,000 for extra duties in paragraph 40 but failed to include it in the awards section in paragraph 47. The court held this omission was an accidental slip that could be rectified to give effect to the court's original intention, citing Nguruman Limited v Attorney General on the slip-rule jurisdiction.

p. 4
03

The proper legal basis for rectifying clerical or arithmetical mistakes

Holding

Section 99 of the Civil Procedure Act is the most appropriate vessel, available suo motu or on application, and is unfettered

Reasoning

Though the application was anchored on Order 45, the court observed that section 99 of the Civil Procedure Act is the most appropriate provision for rectifying clerical or arithmetical mistakes in judgments, decrees or orders, whether invoked by the court suo motu or by a party, and that the jurisdiction is not fettered.

p. 2

Legal principles established

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  • A court may, under section 99 of the Civil Procedure Act, correct clerical or arithmetical mistakes in judgments where the correction gives effect to the court's intention at the time of judgment
  • An error apparent on the face of the record for review purposes must be self-evident and not require elaborate argument

Court orders

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  1. 1.The award of compensation under Section 49(1)(c) of the Employment Act 2007 is reviewed to USD 27,000 in place of USD 2,700; paragraphs 46 and 47(E) of the Judgment are amended to reflect the review
  2. 2.The award of USD 6,000 for extra duties is granted to the Claimant under Paragraph 47(E)(i) of the Judgment

Authorities

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Legislation

  • Employment Act 2007Section 49(1)(c)
  • Civil Procedure Rules 2010Order 45 Rules 1 and 2
  • Civil Procedure Rules 2010Order 50 Rule 1
  • Civil Procedure Rules 2010Order 21 Rule 1
  • Civil Procedure Act (Chapter 21, Laws of Kenya)Sections 1A, 1B, 3A and 99
  • Constitution of KenyaArticles 159(2)(d) and 48

Cases cited (3)

  • National Bank of Kenya Ltd v Ndungu Njau
  • Nguruman Limited v Attorney General & another
    [2021] eKLR
  • Vallabhdas Karsandas Raniga v Mansukhlal Jivraj and others
    [1965] EA 780
Jurisdiction invoked
Order 45 Rules 1 and 2 and Order 50 Rule 1 of the Civil Procedure Rules 2010; Sections 1A, 1B and 3A of the Civil Procedure Act; Section 99 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, "Parmar v African Express Airways (Employment and Labour Relations Cause 1434 of 2017) [2023] KEELRC 2711 (KLR)", Case Analysis (2023). Not stated in the judgment excerpt (Notice of Motion dated 24th May 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2711/eng@2023-10-31

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