Mwonzu v Kenyatta National Hospital (Employment and Labour Relations Cause E380 of 2020) [2024] KEELRC 2775 (KLR)
The bottom line
#Kenya's Employment Court raised a wrongly computed unfair termination award by recalculating it on gross salary, but refused remedies that were never pleaded.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction to review the ruling of 24th May 2024
The ELRC has power under section 16 of the ELRC Act read with Rule 74 of the Employment and Labour Court (Procedure) Rules 2024 to review its judgments, awards, orders or decrees on the grounds of error apparent on the face of the record
Section 16 of the Employment and Labour Relations Court Act grants the Court power to review its decisions in accordance with the Rules. The new 2024 Rules (Rule 74) provide the review grounds including mistake or error apparent on the face of the record and clarification. The court found a miscalculation using basic instead of gross salary to be such an error and declined to hold that the Claimant should have appealed instead.
Whether the award should have been computed on gross salary
Yes; section 49(1)(c) of the Employment Act requires computation on gross monthly wage or salary, which includes basic pay plus allowances
The court held it erred in using basic salary instead of gross salary. Relying on Postal Corporation of Kenya v Andrew K. Tanui, gross salary is basic salary plus allowances before deductions. The revised figures used the gross pay of Kshs 75,511 for the 12 months' compensation and Kshs 37,960 for the 25 months' half salary, raising the total award to Kshs 1,855,732.
Recommendation letter and certificate of long service
Refused because not pleaded
The court held that parties are bound by their pleadings; a recommendation letter and certificate of long service were never pleaded in the suit and therefore cannot be granted through a review application. The respondent had also stated it had already availed a certificate of service under section 51 of the Employment Act.
Legal principles established
#- Gross monthly wage or salary under section 49(1)(c) of the Employment Act comprises basic salary plus allowances, before deductions, and compensation for unlawful termination must be computed on that basis
- A court may review its own award where there is an error apparent on the face of the record, such as use of basic instead of gross salary in the computation
Court orders
#- 1.Prayer for amendment of case number from ELRC Cause No E402 of 2020 to ELRC Cause No E380 of 2020 noted as spent as the correction was already made
- 2.Compensation for unlawful/unfair/illegal termination revised to Kshs 75,511 X 12 months = Kshs 906,132/=
- 3.Half (1/2) salary from 4th September 2016 to 14th November 2018 revised to Kshs 37,960/= X 25 months = Kshs 949,600/=
- 4.Total award revised to Kshs 1,855,732/= instead of Kshs 1,129,772/=
- 5.Prayer for recommendation letter and certificate of long service declined
- 6.Each party to bear their own costs of the application
- Jurisdiction invoked
- Section 16 of the Employment and Labour Relations Court Act, Cap 8E, and Rule 74 of the Employment and Labour Court (Procedure) Rules 2024
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mwonzu v Kenyatta National Hospital (Employment and Labour Relations Cause E380 of 2020) [2024] KEELRC 2775 (KLR)", Case Analysis (2024). ELRC Cause No E380 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2775/eng@2024-11-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.