Ndungu v Segera Limited (Cause E008 of 2022) [2024] KEELRC 66 (KLR)
The bottom line
#A Kenyan court confirmed an omitted claim can be reviewed, but still dismissed the worker's overtime and rest day claims for lack of evidence and delay.
What this practically means
#Executive summary
#Key legal issues
#Whether the application was brought after unreasonable delay
The application was brought after unreasonable delay; the claimant waited for settlement of the decree and costs before seeking more, making it an afterthought, though the court still considered its merits.
The court noted judgment was delivered on 26th May 2023 and the application dated 29th June 2023. The respondent argued the delay was inordinate since the decretal sum and taxed costs had been paid in full. The court agreed that the claimant, if dissatisfied, should have challenged the decree first rather than waiting for settlement before returning to court for more.
Whether the failure to determine the overtime and rest day claims was an error apparent on the face of the record
Yes - the court confirmed it had not determined the claims for overtime and rest days, and that failure was a mistake or error apparent on the face of the record meeting the review threshold.
Relying on National Bank of Kenya v Ndungu Njau and Nyamogo and Nyamogo v Kogo, the court held that an error or omission apparent on the face of the record is one that is self-evident and requires no elaborate argument. The omission of the pleaded claims in paragraph 27 of the Memorandum of Claim from the judgment was obvious and announced itself clearly.
Whether the claimant proved his claim for overtime
No - the claim for overtime lacked material particulars, was exaggerated, and was not proved; in particular there was no proof of the management authorisation required by clause 5 of the appointment letter.
Clause 5 of the appointment letter required overtime to be first approved by management, and no such authorisation was produced. The claim covered almost four years yet email complaints of workload related only to the period from 2020. The pleaded claim assumed no leave was ever taken, which was not the case. Being a special damages claim, it had to be specifically pleaded and proved on a balance of probabilities.
Whether the claim for 24 rest days not taken was proved
No - the claim failed for lack of material particulars and supporting evidence; the claimant had already been compensated Kshs. 116,622 for off days per his June 2021 payslip, which he never factored into his pleadings.
The claimant assessed 24 rest days at Kshs. 294,624, being double daily wages, but produced no cogent proof of the number of days. The respondent's production of the June 2021 payslip showing compensation for off days was undisputed and unreconciled by the claimant. The burden was on the claimant to plead specifically and adduce evidence; he could not rely on the respondent's default.
Legal principles established
#- A claim for overtime work is a claim for special damages which must be specifically pleaded and proved by the claimant on a balance of probabilities; the claimant cannot prove his claim through the respondent's default in adducing evidence.
- Failure by a court to determine a claim pleaded before it constitutes a mistake or error apparent on the face of the record capable of grounding review.
Court orders
#- 1.The request to vary the judgment of 26th May 2023 was declined
- 2.The application was dismissed with costs
- Jurisdiction invoked
- Rule 33 of the Employment and Labour Relations Court Rules, 2016; sections 1A, 1B, 3A, 80 of the Civil Procedure Act; Order 45 rules 1, 2 and 3 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ndungu v Segera Limited (Cause E008 of 2022) [2024] KEELRC 66 (KLR)", Case Analysis (2024). Notice of Motion dated 29th June 2023 (ELRC, Nyeri). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/66/eng@2024-01-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.