Njihia & 2 others v Kenya Road Hauliers Limited (Employment and Labour Relations Cause E318 of 2023) [2024] KEELRC 2228 (KLR)
The bottom line
#The court granted each claimant one month's notice pay of Kshs 35,483 but refused severance pay and leave dues, holding a rejected settlement computation is not an admission.
What this practically means
#Executive summary
#Key legal issues
#Whether there was a mistake or error apparent on the face of the record justifying review
Review allowed only to the limited extent of the salary in lieu of notice already held due; no error apparent as regards leave days and severance pay
The Court's power to review its judgment is statutory under Section 16 of the ELRC Act and Rule 33(1) of the ELRC (Procedure) Rules. The Claimants relied on Rule 33(1)(b). The Court found that the Respondent's computation of terminal dues was a proposal the Claimants rejected and could not be an admission, and that the Claimants bore the evidentiary burden of proving entitlement to terminal dues. Only the notice pay, already held due in the judgment, qualified for review.
Whether the Respondent's computed schedule of terminal dues constituted an admission
It did not; it was a proposal rejected by the Claimants
The Respondent had prepared and computed a schedule of terminal dues and negotiations were ongoing on the amounts payable. The Claimants withdrew from the negotiations, served a demand letter while notice was still running, and filed suit, thereby rejecting the proposals. A rejected proposal cannot be treated as an admission of liability, and entitlement to terminal dues had to be proved evidentially.
Character of severance pay where redundancy is found to be unfair termination
Severance pay is not an accrued terminal due in such circumstances; compensation lies under Section 49(1) of the Employment Act
Having found the termination on account of redundancy unfair, the separation ceased to be a redundancy. Severance pay is a consequence of redundancy; once the Claimants proved the redundancy was unfair, it transitioned to unfair termination for which compensation is payable under Section 49(1) of the Employment Act. Therefore the Court's failure to award severance pay was not an error apparent on the face of the record.
Legal principles established
#- An error or mistake apparent on the face of the record is self-evident and does not require elaborate arguments to establish
- A party's computation of terminal dues is a proposal, not an admission, where it was rejected by the counterparty
- Where a purported redundancy is found to be an unfair termination, severance pay under Section 40 gives way to compensation under Section 49(1) of the Employment Act
Court orders
#- 1.The judgment delivered on 16th May, 2024 is reviewed to award each Claimant salary in lieu of notice of Kshs 35,483.00 (George Njugi Njigia, Benard Njaci Njoroge, Peter Karume Macharia)
- 2.Each party to bear own costs
- Jurisdiction invoked
- Section 16 of the Employment and Labour Relations Court Act, 2011 and Rule 33 of the Employment and Labour Relations Court (Procedure) Rules, 2016
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Njihia & 2 others v Kenya Road Hauliers Limited (Employment and Labour Relations Cause E318 of 2023) [2024] KEELRC 2228 (KLR)", Case Analysis (2024). Not stated in judgment (Notice of Motion dated 29th May, 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2228/eng@2024-09-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.