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ELRCAllowedNotice of Motion Application dated 7th September 2023· [2023] KEELRC 3397 (KLR)

Kenya Union of Commercial Food and Allied Workers v Komothai Coffee Growers Limited (Cause 708 of 2019) [2023] KEELRC 3397 (KLR)

Employment and Labour Relations Court
20 December 2023
SRSTELLA RUTTO
1,094 words in judgment
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The bottom line

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Kenya's Employment Court corrected name and calculation errors in an unpaid salaries judgment, fixing the award at Kshs 12,063,745.60.

What this practically means

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Executive summary

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The Employment and Labour Relations Court at Nairobi, in a ruling delivered by Stella Rutto J on 20th December 2023, determined the Claimant/Applicant's Notice of Motion dated 7th September 2023 seeking review of the Court's judgment of 28th October 2022, which had ordered payment of unpaid salaries for January to December 2018 to fifty grievants totalling Kshs 13,613,025.00. The application, supported by the affidavit of Helina Macharia and unopposed by the Respondent, sought correction of errors apparent on the face of the record: an arithmetical discrepancy (the judgment figures adding up to Kshs 11,673,684.00), duplication of four names at numbers 4, 11, 12 and 20 (Joseph Mwangi Njuguna, Josiah Ngata, Margaret Wanjiru and Peris Njoki) which were correctly repeated at numbers 39, 41, 45 and 47, and the omission of four grievants - John Ngei Ngethe, Abraham Muhia Thangate, James Muiru Kariuki and John Kiuru Kiarie - who appeared in the typed list of unpaid grievants. The Court applied Rule 33(1)(b) of the Employment and Labour Relations Court (Procedure) Rules, which permits review on account of a mistake or error apparent on the face of the record. Observing that the Claimant had exhibited two differing lists of grievants, the Court found the duplication and omissions to be probable errors and concluded that a mistake and error apparent on the face of the record existed. The application was allowed: the four duplicated names were expunged; the four omitted grievants were included with specific salary awards; and the total award was reviewed from Kshs 13,613,025.00 to Kshs 12,063,745.60. There were no orders as to costs.

Key legal issues

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01

Whether arithmetical discrepancies and duplicated/missing grievant names in the judgment constitute errors apparent on the face of the record

Holding

Yes - the duplication of names and omission of four grievants amounted to a mistake and error apparent on the face of the record warranting review under Rule 33(1).

Reasoning

The Court compared the two lists of grievants exhibited by the Claimant (handwritten and typed) with the judgment. It found that names at numbers 4, 11, 12 and 20 bore a close resemblance to those at numbers 39, 41, 45 and 47, making a replication of names probable. The four omitted grievants appeared in the typed list but not in the Amended Memorandum of Claim. Both defects satisfied the Rule 33(1) threshold for review.

p. 2

Legal principles established

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  • Rule 33(1)(b) of the ELRC (Procedure) Rules permits review of a judgment or ruling on account of a mistake or error apparent on the face of the record.

Court orders

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  1. 1.Application dated 7th September 2023 allowed
  2. 2.Names appearing at numbers 4, 11, 12 and 20 of the Judgment expunged
  3. 3.John Ngei Ngethe, Abraham Muhia Thangate, James Muiru Kariuki and John Kiuru Kiarie included in the Judgment delivered on 28th October 2022 as beneficiaries entitled to withheld salaries
  4. 4.Total award reviewed from Kshs 13,613,025.00 to Kshs 12,063,745.60
  5. 5.No orders as to costs

Authorities

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Legislation

  • Employment and Labour Relations Court (Procedure) RulesRule 33(1)(b)
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Civil Procedure ActSection 1B
Jurisdiction invoked
Rule 33(1)(b) 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, "Kenya Union of Commercial Food and Allied Workers v Komothai Coffee Growers Limited (Cause 708 of 2019) [2023] KEELRC 3397 (KLR)", Case Analysis (2023). Notice of Motion Application dated 7th September 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3397/eng@2023-12-20

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