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ELRCAllowedCause No 134 of 2018· [2023] KEELRC 3360 (KLR)

Njenga v Muchiri t/a Neema Apartments (Cause 134 of 2018) [2023] KEELRC 3360 (KLR)

Employment and Labour Relations Court
13 December 2023
DNDAVID NDERITU
1,156 words in judgment
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The bottom line

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A Kenyan employment court fixed a clerical error in its earlier judgment, adding omitted leave pay and ordering interest on the full award.

What this practically means

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Executive summary

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This is a ruling of the Employment and Labour Relations Court at Nakuru (Nderitu J.) on a notice of motion dated 31st October, 2023 by the claimant, Robert Njenga Nduati, the decree holder in a claim decided in his favour by Mbaru J. on 14th November, 2019, where compensation, notice pay, underpayments and pay for four days worked in March 2018 were awarded, together with costs. The application, brought under Sections 1A, 1B, 3A and 99 of the Civil Procedure Act, Order 21 Rule 3(3) and Order 50 Rule 1 of the Civil Procedure Rules, sought amendment of the judgment to include Kshs.58,405.60 in leave pay and interest on the decretal sum from the date of judgment. The claimant deponed that the judgment expressly assessed leave pay under Section 28 of the Employment Act at Kshs.58,405.60 but the final orders omitted that sum, an omission detected only in October 2023 when warrants of arrest were sought in execution, which the Deputy Registrar declined to include. The application was unopposed. The court held that the omission was inadvertent and an error apparent on the face of the record, correctable under the cited provisions and Section 3 of the Employment and Labour Relations Court Act and Rule 34 of the ELRC (Procedure) Rules. Relying on Section 26 of the Civil Procedure Act, the court also held that interest on the decretal sum and costs should be awarded notwithstanding the judgment's silence. The application was allowed, the omission rectified, a new decree ordered, interest awarded at court rates, and the claimant permitted to re-apply for execution; there was no order as to costs.

Key legal issues

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01

Whether the court could rectify the judgment to include the omitted leave pay award

Holding

Yes; the omission was inadvertent and an error apparent on the face of the record, corrected under Sections 1A, 1B, 3A and 99 of the Civil Procedure Act, Section 3 of the ELRC Act and Rule 34 of the ELRC (Procedure) Rules

Reasoning

The judgment's reasoning expressly assessed leave pay at Kshs.58,405.60, yet the final orders omitted that sum. The court treated the discrepancy between the reasoning and the orders as an inadvertent slip which it should correct without hindrance in the interest of justice, relying on the cited provisions of the Civil Procedure Act and the ELRC Act and Rules.

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02

Whether interest on the decretal sum and costs should be awarded despite the judgment's silence

Holding

Yes; interest at court rates from the date of judgment until payment in full was awarded under Section 26 of the Civil Procedure Act

Reasoning

Section 26(1) permits a court to order interest on the principal sum adjudged from the date of the decree to payment, and Section 26(2) deems interest at 6% per annum where the decree is silent. The court held that a decree-holder should freely receive interest on the decretal sum and costs notwithstanding the judgment's omission.

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Legal principles established

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  • An omission in the final orders that does not reflect the court's reasoned award is an error apparent on the face of the record which the court may correct
  • Interest on the decretal sum and costs should be awarded to a decree-holder even where the judgment was silent on interest, failing which interest at 6% per annum is deemed under Section 26(2) of the Civil Procedure Act

Court orders

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  1. 1.That omission of the award of the sum of Kshs.58,405.60 in the judgment of 14th November, 2019 was an inadvertent omission that is hereby rectified and the said sum is awarded to the claimant as it ought to have been so awarded
  2. 2.That a new decree be issued factoring in the award in (a) above
  3. 3.That interest on the decretal sum and costs be charged and awarded to the claimant at court rates from the date of the judgment till payment in full
  4. 4.That consequently, the judgment-creditor shall now re-apply for execution factoring in the above changes in the amounts now due and payable
  5. 5.That there is no order as costs

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A, 99, 26(1), 26(2)
  • Civil Procedure RulesOrder 21 Rule 3(3), Order 50 Rule 1
  • Employment Act, 2007Section 28
  • Employment and Labour Relations Court ActSection 3
  • Employment and Labour Relations Court (Procedure) RulesRule 34
Jurisdiction invoked
Sections 1A, 1B, 3A & 99 of the Civil Procedure Act; Order 21 Rule 3(3) and Order 50 Rule 1 of the Civil Procedure Rules; Section 3 of the Employment and Labour Relations Court Act and Rule 34 of the Employment and Labour Relations Court (Procedure) Rules

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, "Njenga v Muchiri t/a Neema Apartments (Cause 134 of 2018) [2023] KEELRC 3360 (KLR)", Case Analysis (2023). Cause No 134 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3360/eng@2023-12-13

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