Mwirigi v Cabinent Secretary, Ministry of Gender, Culture, Arts & Heritage & 2 others; Advisory Board (Interested Party) (Employment and Labour Relations Petition E206 of 2023) [2024] KEELRC 1703 (KLR)
The bottom line
#Kenya's Employment Court corrected its own damages calculation on review, nearly tripling a worker's award after discovering it had used the wrong salary figure.
What this practically means
#Executive summary
#Key legal issues
#Whether the alleged miscalculation of nominal damages constituted an error apparent on the face of the record warranting review under Rule 33 of the ELRC (Procedure) Rules
Yes. The court found it may have inadvertently overlooked the petitioner's actual gross salary as shown in the March 2023 payslip, constituting an error apparent on the face of the judgment justifying review of the award
The court set out the principles from Paul Mwaniki v NHIF, Nyamogo & Nyamogo v Kogo and other authorities: an error apparent on the face of the record must be self-evident, requiring no elaborate argument, and review is not an appeal in disguise. Having examined the annexed payslip, the court concluded the gross salary figure used in computing the nominal damages was wrong and that the error was evident per se, entitling the applicant to rectification of the award.
Whether the original assessment of nominal damages under section 49 of the Employment Act was within the court's discretion
Section 49 remedies are discretionary, not mandatory, to be granted on the peculiar facts of each case with reference to the section 49(4) considerations; this framed the respondents' and interested party's opposition
The court reproduced the Court of Appeal's guidance in Co-operative Bank of Kenya Ltd v BIFU that remedies under section 49 are discretionary, the word 'may' importing discretion, and that the court must be guided by the comprehensive list of considerations in section 49(4). It also noted the principle against interfering with judicial discretion absent misdirection or manifest injustice.
Legal principles established
#- An error apparent on the face of the record must be self-evident and not require elaborate argument; a mere erroneous decision or a different possible view is not a ground for review
- Remedies under section 49 of the Employment Act are discretionary rather than mandatory and must be assessed on the peculiar facts of each case having regard to the considerations in section 49(4)
Court orders
#- 1.Review of the award of nominal damages of Kshs 723,060/- made in the judgment of 13th March 2024 and substitution thereof with Kshs 1,749,920/-
- 2.All other terms of the judgment of 13th March 2024 remain constant
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mwirigi v Cabinent Secretary, Ministry of Gender, Culture, Arts & Heritage & 2 others; Advisory Board (Interested Party) (Employment and Labour Relations Petition E206 of 2023) [2024] KEELRC 1703 (KLR)", Case Analysis (2024). Not stated in judgment (Notice of Motion dated 19th March 2024, arising from judgment delivered 13th March 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1703/eng@2024-07-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.