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ELRCOtherNotice of Motion dated 18th March, 2024· [2024] KEELRC 1708 (KLR)

Onderi v Mini Bakeries (Nairobi) Limited (Cause E716 of 2021) [2024] KEELRC 1708 (KLR)

Employment and Labour Relations Court
8 July 2024
JGJacob Gakeri
1,397 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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This ruling of the Employment and Labour Relations Court at Nairobi, delivered by Dr. Jacob Gakeri, Judge, on 8th July 2024, determined the Claimant's Notice of Motion dated 18th March 2024 seeking clarification and correction of the judgment of 6th December 2023 concerning payment in lieu of notice. The application was brought under Rules 33 and 34 of the Employment and Labour Relations Court (Procedure) Rules, 2016. The Applicant contended that paragraph 156 of the judgment, which declined the claim for pay in lieu of notice, contradicted paragraph 167(c), which awarded all prayers admitted by the Respondent in its termination letter, and urged that the final orders prevail and that he was contractually entitled to three months' notice pay. The Respondent maintained that paragraph 156 should prevail, the issue having been dispensed with, and that it stood ready to settle the decretal sum. The court held that it possessed jurisdiction under Rule 33 to clarify its judgments, applied the principle from Pancrast Swan v Kenya Breweries Ltd that review corrects mistakes and does not substitute a view, and found the two paragraphs not contradictory: paragraph 156 recorded a finding on the evidence, while paragraph 167(c) was a final order enforcing the Respondent's written promise to pay two months' notice salary. The court clarified that the Claimant is entitled to two (2) months' salary in lieu of notice, not the three months claimed, and directed that each party bear its own costs. The application was effectively allowed only to the extent of the clarification.

Key legal issues

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01

Whether paragraphs 156 and 167(c) of the judgment of 6th December 2023 are contradictory on pay in lieu of notice

Holding

They are not contradictory: paragraph 156 was a finding on the evidence, while paragraph 167(c) was a final order grounded on the Respondent's written admission of two months' notice pay; the final order prevails

Reasoning

The court reviewed Rule 33 review jurisdiction and stressed that review corrects mistakes rather than substituting views. It found no contradiction: the finding in paragraph 156 rested on evidence supporting the termination's validity, while the final order in paragraph 167(c) enforced the Respondent's written promise to pay two months' notice. The clarification was therefore confined to confirming what the judgment already held.

p. 3

Legal principles established

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  • Review power is for correction of a mistake, not substitution of a view; it cannot be an appeal in disguise
  • A court's final orders on an admitted promise bind as clarified, even where the earlier finding on the pleaded relief declined it

Court orders

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  1. 1.Clarification that paragraph 167(c) prevails as the final order: the Claimant is entitled to two (2) months' salary in lieu of notice, per the Respondent's written promise in its termination letter
  2. 2.Each party to bear their own costs

Authorities

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Legislation

  • Employment and Labour Relations Court (Procedure) Rules, 2016Rule 33(1)
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Constitution of Kenya, 2010Article 48
  • Civil Procedure ActSection 1B
  • Civil Procedure RulesOrder 21 Rule 1

Cases cited (3)

  • Rosslyn Khadenyi Madere v Naisula Holdings Ltd T/A Naisula School & another
    (2022) eKLR
  • National Bank of Kenya Ltd v Pipeplastic Samkolit (K) Ltd & another
    (2001) eKLR
  • Pancrast Swan v Kenya Breweries Ltd
    (2014) eKLR
Jurisdiction invoked
Rule 33(1) of the Employment and Labour Relations Court (Procedure) Rules, 2016 (review/clarification jurisdiction)

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, "Onderi v Mini Bakeries (Nairobi) Limited (Cause E716 of 2021) [2024] KEELRC 1708 (KLR)", Case Analysis (2024). Notice of Motion dated 18th March, 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1708/eng@2024-07-08

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