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ELRCDismissedNBI. ELRC. NO. 2205 of 2015· [2024] KEELRC 1240 (KLR)

Aponda v Ola Energy Kenya Limited (Cause 2205 of 2015) [2024] KEELRC 1240 (KLR)

Employment and Labour Relations Court
23 May 2024
LNLINNET NDOLO
1,300 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Claimant moved the Court by Notice of Motion dated 31st October 2023 under the Court's review jurisdiction (Section 16 of the ELRC Act and Rule 33 of the ELRC Procedure Rules), seeking review of the judgment of Makau J delivered on 20th September 2019 and the subsequent decree, so as to substitute gross-salary figures for the net-salary figures used in computing the award: one month's salary in lieu of notice from Kshs. 759,635 to Kshs. 1,085,193.85, twelve months' compensation from Kshs. 9,115,620 to Kshs. 13,022,326.20, and the total from Kshs. 9,875,253 to Kshs. 14,107,520. The Claimant argued the Judge erred by computing the award on net salary while directing it be subject to statutory deductions, and that the Respondent had paid the decretal sum without remitting taxes. The Respondent opposed via Grounds of Opposition, contending there was no error apparent on the face of the record, the Claimant was bound by his pleading of a gross monthly salary of Kshs. 759,635, the application was filed out of time without explanation, and was an abuse of process. The Court held that review exists only to correct obvious, self-evident errors, not to revisit arguable constructions of a pleading; the pleaded salary figure itself was ambiguous and construing it would require long-drawn argument outside review. Further, the application filed over four years after judgment suffered inordinate, unexplained delay. The application was dismissed with each party bearing their own costs.

Key legal issues

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01

Error apparent on the face of the record

Holding

The alleged misreading of the pleaded salary figure is at most an erroneous decision, not an error apparent on the face of the record, since its construction requires elaborate argument

Reasoning

Makau J adopted the salary figure the Claimant pleaded at paragraph 76(a), which was ambiguous ('gross pay... after deduction of requisite taxes'). Determining whether the Judge misconstrued it would require a long-drawn process of reasoning, which the authorities (National Bank of Kenya v Ndungu Njau; Nyamogo and Nyamogo v Kogo) exclude from review. Parties bear responsibility for stating their case clearly in pleadings.

p. 3
02

Reasonable time/delay in review applications

Holding

Filing the review application over four years after judgment, without credible explanation, constituted unreasonable delay

Reasoning

Rule 33(1) requires an application for review 'within reasonable time'. Judgment was delivered on 20th September 2019 and the Motion was not filed until 31st October 2023. Following Panalpina (E.A) Ltd v Ngage, the Court found the delay inordinate and, absent a valid explanation, unreasonable — an independent ground for dismissal.

p. 3

Legal principles established

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  • Review is not a second look at the decision but correction of obvious, self-evident errors apparent on the record
  • An application for review must be made without unreasonable delay

Court orders

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  1. 1.The Claimant's application dated 31st October 2023 is declined
  2. 2.Each party to bear their own costs

Authorities

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Legislation

  • Employment and Labour Relations Court ActSection 16
  • Employment and Labour Relations Court (Procedure) RulesRule 33(1)
  • Civil Procedure RulesOrder 45 Rule 1
  • Employment ActSection 90

Cases cited (3)

  • National Bank of Kenya Limited v Ndungu Njau
    [1997] eKLR
  • Nyamogo and Nyamogo Advocates v Kogo
    (2001) EA 173
  • Panalpina (E.A) Ltd v Ngage
    (1999) LLR 2370 (HCK)
Jurisdiction invoked
Section 16 of the Employment and Labour Relations Court Act and Rule 33 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, "Aponda v Ola Energy Kenya Limited (Cause 2205 of 2015) [2024] KEELRC 1240 (KLR)", Case Analysis (2024). NBI. ELRC. NO. 2205 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1240/eng@2024-05-23

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