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ELRCPartially AllowedNot stated in the judgment text

Togom v Radar Limited (Employment and Labour Relations Appeal E003 of 2023) [2024] KEELRC 1205 (KLR)

Employment and Labour Relations Court
21 May 2024
4,112 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court corrected its own wage calculation error, nearly doubling a worker's overtime and holiday pay award to Kshs 386,319.68.

What this practically means

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Executive summary

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This is a ruling on a Notice of Motion dated 23rd February 2024 in which the Appellant sought partial review of the Court's judgment of 1st February 2024, contending that the Court had made errors in calculating overtime and public holidays pay. The Applicant argued the Court had established 2592 overtime hours and 33 public holiday days worked over three years but had applied a multiplier of 1 instead of 1½ for overtime and 2 for public holidays, and proposed an hourly rate of Kshs 212.60 drawn from the Wage Order of 2018. He alternatively sought referral of the tabulations to the Labour Office and apportionment of costs. The Respondent opposed, contending the application was in substance an appeal disguised as review, that no error apparent on the record existed, and that costs could not be revisited on review. The Court first disposed of the jurisdictional objection, holding that Rule 33 of the ELRC (Procedure) Rules 2016 empowers it to review its own decree or orders. It then found that, contrary to section 6 of the Regulations of Wages (General) Order and section 7 of the Regulations of Wages (Protective Security Services) Order, the Court had by error used a multiplier of 1 instead of 1½ and 2 in computing overtime and holiday pay. The application was allowed: overtime pay was reviewed to approximately Kshs 296,000 and holiday pay to Kshs 90,319.68, totalling Kshs 386,319.68 less statutory deductions. No referral to the Labour Office was made, no costs were apportioned, and the rest of the judgment remained unchanged.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether this Court has jurisdiction to review its own judgment of 1st February 2024
  2. 2.Whether there is an error apparent on the face of the record in the calculation of overtime and public holidays pay
  3. 3.Whether the matter should be referred to the Labour Office for tabulation of the award
  4. 4.Whether the Court should apportion the costs payable by the Respondent

Key legal issues

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01

Jurisdiction to review own judgment

Holding

The Court has jurisdiction to review its own decree or order under Rule 33 of the ELRC (Procedure) Rules 2016, notwithstanding that an appeal lay.

Reasoning

The Respondent argued the Court could not review its judgment at that stage and the Applicant's remedy was an appeal. The Court examined Rule 33 of the ELRC (Procedure) Rules 2016, which permits a person aggrieved by a decree or order to apply for review on grounds including error apparent on the face of the record. The Court held the rule empowers it to review its own decree, and the Respondent's contrary submission was erroneous.

p. 7
02

Error apparent on the face of the record in the calculation

Holding

The Court found an apparent error in that it had used a multiplier of 1 instead of 1½ for overtime and 2 for public holidays pay, and reviewed the award accordingly.

Reasoning

The Court accepted the statutory framework in section 6 of the Regulations of Wages (General) Order and section 7 of the Regulations of Wages (Protective Security Services) Order prescribing multipliers of 1.5 and 2. Comparing the judgment's calculations with the law, it found it had by error employed a multiplier of 1 instead of 1½ and 2 respectively, making the review application merited. It substituted recalculated figures for overtime and holiday pay.

p. 8

Legal principles established

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  • Under Rule 33 of the ELRC (Procedure) Rules 2016, the ELRC can review its own decree or orders on grounds of discovery of new matter, error apparent on the face of the record, need for clarification, or other sufficient reason.
  • Overtime is payable at one and one-half times the normal hourly rate, and time worked on a rest day or public holiday at twice the normal hourly rate.

Court orders

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  1. 1.Review of paragraph 58 of the judgment: overtime pay recalculated at the established 2592 hours with hourly rate of 114.04, approximately Kshs 296,000
  2. 2.Review of the holiday pay calculation: 114.04 hourly rate x 33 days x 12 hours daily x 2 = 90,319.68
  3. 3.Paragraph 67 reviewed to read: Overtime = Kshs 296,000; Holiday Pay = Kshs 90,319.68; Total = Kshs 386,319.68 less statutory deductions
  4. 4.The rest of the judgment remains unchanged

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Section 80 of the Civil Procedure Act, Orders 45 Rule 1(a)&(b) and 2(2) of the Civil Procedure Rules, and Rule 33 of the ELRC (Procedure) Rules 2016

Relief refused

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Apportionment of costs proportionate to the reliefs succeeded upon

No order made on this head; the original costs position was left untouched as the rest of the judgment remained unchanged

p. 8

Referral of the tabulations to the Labour Office

The Court found the calculations could itself be corrected on review, making reference unnecessary

Costs

No express costs order made on the review application; the costs position in the judgment of 1st February 2024 stands unchanged

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

It is apparent that in calculating the amount payable in case of the overtime pay and the holiday pay, this court by error employed a multiplier of 1 instead of 1 ½ and 2 respectively.
p. 8Error apparent on the face of the record
Overtime shall be payable at the following rates (a) for time worked in excess of the normal number of hours per week at one and one-half times the normal hourly rate.
p. 7Statutory overtime rates
Overtime = 296,000/-Holiday Pay = 90,319.68/-Total = 386,319.68/-Less statutory deductions
p. 8Final orders - reviewed award
The rest of the judgment remains unchanged.
p. 8Scope of the review

Issues in the judgment

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minor

The case title, cause/appeal number and station are not stated anywhere in the judgment text; the matter is only identifiable as a review of a judgment delivered on 1st February 2024.

minor

The judgment states 'At page 58 of the judgment the court found that overtime pay was 2592 hours' although elsewhere the reference is to paragraph 58, suggesting a numbering inconsistency.

minor

Two passages are both numbered '48' in the judgment text, creating duplicate paragraph numbering.

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, "Togom v Radar Limited (Employment and Labour Relations Appeal E003 of 2023) [2024] KEELRC 1205 (KLR)", Case Analysis (2024). Not stated in the judgment text. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1205/eng@2024-05-21

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