Ntinyari & 17 others v Odwyer & 2 others (Employment and Labour Relations Cause E004 of 2023) [2024] KEELRC 545 (KLR)
The bottom line
#Kenya's Employment Court confirmed that courts must correct obvious calculation errors in judgments, ruling that written submissions are not evidence and can't justify wrong awards.
What this practically means
#Executive summary
#Key legal issues
#Whether the impugned ruling dismissing the review application is appealable
The ruling is appealable as of right under Order 43 Rule 1(x) of the Civil Procedure Rules; the appeal is not an abuse of court process.
The 2nd Respondent argued the appeal merely sought a second review and was an abuse of process. The court noted Order 43 Rule 1 provides for orders appealable as of right, and rule 1(x) expressly covers Order 45 rule 3 (application for review). Since the appellants were appealing the review ruling, not the judgment itself, the appeal was properly before the court.
Whether the trial court erred in declining to review its judgment to correct the erroneous awards
The trial court misdirected itself by relying on the claimants' written submissions instead of the pleadings and evidence, and its refusal to correct the errors was a improper exercise of discretion.
The judgment awarded each claimant 16 months' gross salary, but computation used 8 months for the 1st appellant and interchanged the awards for the 12th and 15th appellants. The trial court declined correction on the basis that the figures came from the claimants' submissions. The appellate court held submissions are not evidence; the court's duty is to evaluate the evidence and award what is pleaded and proved, so the errors were apparent on the face of the record.
Legal principles established
#- An appeal lies as of right from an order made on an application for review under Order 45 rule 3, by virtue of Order 43 Rule 1(x) of the Civil Procedure Rules.
- On a first appeal, the court is empowered to re-evaluate the evidence on record and make its own independent conclusions.
- Written submissions do not form part of the pleadings or evidence and cannot be the basis of a court's award.
- Courts are obliged under Article 159(2) of the Constitution to do substantive justice rather than adhere to procedural technicalities.
Court orders
#- 1.The ruling of the trial court delivered on 10th March 2023 is set aside and substituted with an order allowing the appellants' Notice of Motion dated 20th January 2023
- 2.The error in the lower court judgment regarding the award of damages payable to the 1st, 2nd, 12th and 15th appellants is corrected (Jackline Ntinyari Kshs. 591,088.00; Judy Wanja Mukuru Kshs. 482,976.00; Esther Mwakina Kshs. 482,976.00; Mary Kavata Mwangangi Kshs. 777,248.00)
- 3.The rest of the judgment remains unchanged save for the correction of the 1st appellant's name done by the trial court in the impugned ruling
- 4.Each party to bear their own costs
- On appeal from
- Chief Magistrate's Court Meru (ELRC)
- Not stated in judgment
- Jurisdiction invoked
- First appeal under Order 43 Rule 1(x) of the Civil Procedure Rules read with section 75(1)(h) of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ntinyari & 17 others v Odwyer & 2 others (Employment and Labour Relations Cause E004 of 2023) [2024] KEELRC 545 (KLR)", Case Analysis (2024). Appeal from Chief Magistrate's Court Meru (ELRC Appeal, Nyeri). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/545/eng@2024-03-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.