Mwangi v African Wildlife Foundation (Cause 1295 of 2016) [2023] KEELRC 3358 (KLR)
The bottom line
#A Kenyan court reviewed its own judgment and awarded an employee nearly Kshs.950,000 in unpaid house allowance, but limited the claim to three years.
What this practically means
#Executive summary
#Key legal issues
#Whether failure to determine the house allowance prayer was an error apparent on the face of the record
The court's failure to address the relief on merit amounted to a mistake or error apparent on the face of the record justifying review.
The applicant had pleaded non-payment of house allowance and attached payslips, but the judgment addressed only unfair termination. Rule 33(1)(b) permits review for a mistake or error apparent on the face of the record, which must be self-evident. Omitting an independent statutory relief constituted such an error.
Whether the Claimant's salary was consolidated (inclusive of house allowance)
The Respondent failed to prove consolidation; the payslips showed 'Basic Pay' with no allowance entries, so house allowance was not paid.
Payslips showed only 'Basic Salary' which was also oddly labelled gross salary, with no allowance entries. Basic salary excludes allowances while gross aggregates basic salary and allowances. The Respondent, though asserting consolidation, tendered no evidence of it, and bore the burden of proving payment of housing allowance.
Whether non-payment of house allowance is a continuing injury under Section 90
It is not; the cause of action accrues monthly, so only claims within 3 years of filing are claimable.
Because house allowance is payable monthly, each month's non-payment creates a separate, severable cause of action rather than one continuing wrongful act. The court adopted Manani J's view in Vipingo Ridge and the Court of Appeal's reasoning in Mary Kitsao Ngowa and the German School Society case, limiting the award to 3 years.
Legal principles established
#- A delay of about 3 months in applying for review generally falls within the confines of reasonable time under Rule 33(1) of the ELRC (Procedure) Rules, 2016.
- Non-payment of a monthly allowance is not a continuing injury; the cause of action arises at the end of every month for limitation purposes under Section 90 of the Employment Act.
- An error apparent on the face of the record must be self-evident and not require elaborate argument.
Court orders
#- 1.The judgement dated 3rd November, 2022 is reviewed as regards the reliefs sought
- 2.The Applicant is awarded house allowance for 3 years amounting to Kshs.949,717.993
- 3.There shall be no orders as to costs
- Jurisdiction invoked
- Section 12(1)(3)(1) & (viii) of the Employment and Labour Relations Court Act, 2011 and Rules 17 and 33(1)(b) of the Employment and Labour Relations Court (Procedure) Rules, 2016
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mwangi v African Wildlife Foundation (Cause 1295 of 2016) [2023] KEELRC 3358 (KLR)", Case Analysis (2023). Cause No 1295 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3358/eng@2023-12-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.