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ELRCDismissedApplication dated 20th September 2024 (ELRC)· [2024] KEELRC 2856 (KLR)

Nyandiago & 3 others v Sibo Water & Sanitation Company Limited (Cause 57 of 2020) [2024] KEELRC 2856 (KLR)

Employment and Labour Relations Court
20 November 2024
NMNzioki wa Makau
798 words in judgment
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The bottom line

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Kenya's Employment Court dismissed a review bid, confirming its new 2024 Procedure Rules now govern review applications and rejecting an increased notice pay award.

What this practically means

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Executive summary

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This ruling of the Employment and Labour Relations Court at Kisumu (Nzioki wa Makau, J) determines a notice of motion dated 20th September 2024 by the Claimants/Applicants seeking review of the judgment delivered on 21st June 2024, specifically the substitution of Kshs. 198,000/- awarded to the 1st Claimant as payment in lieu of notice with Kshs. 390,000/-, and an adjustment of the total award accordingly. The application was premised on sections 13, 16 and 20 of the Employment and Labour Relations Act and Rules 17, 33 and 34 of the 2016 Procedure Rules, and was unopposed at the time of the ruling. The court nonetheless considered the merits. It held that the 2016 Rules had been supplanted with effect from 16th August 2024 by the Employment and Labour Relations Court (Procedure) Rules 2024 (Legal Notice No. 133 of 16th August 2024), and that the correct provision governing review is Rule 74; the application was therefore handled as if brought under Rule 74(1)(b), (2), (3) and (4). On the merits, the court found the contract of the 1st Claimant provided a monthly salary of Kshs. 66,000/- with 3 months' notice or pay in lieu, yielding Kshs. 198,000/-; the judgment of Radido J. had duly considered these terms and contained no error apparent on the face of the record warranting review. The application was dismissed with no order as to costs.

Key legal issues

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01

Applicable procedural rules for review

Holding

The 2024 Rules apply; the review is treated as brought under Rule 74 despite the application citing the 2016 Rules

Reasoning

The court held that as of 16th August 2024 the 2016 Rules had been supplanted by the 2024 Rules gazetted as Legal Notice No. 133 of 16th August 2024. The court therefore treated the application as if it referenced Rule 74, which sets out the grounds and procedure for review, rather than dismissing it for citing the wrong rules.

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02

Error apparent on the face of the record

Holding

No error apparent on the face of the record; the notice pay award of Kshs. 198,000/- was arithmetically correct (Kshs. 66,000/- monthly salary x 3 months' notice)

Reasoning

The contract provided a monthly salary of Kshs. 66,000/- with 3 months' written notice or payment in lieu. Simple arithmetic yields Kshs. 198,000/-. The judgment by Radido J. duly considered the monthly salary and notice period, so there was no mistake or error apparent on the face of the record to warrant review under Rule 74(1)(b).

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Legal principles established

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  • The Employment and Labour Relations Court (Procedure) Rules 2024 (Legal Notice No. 133 of 16th August 2024) supplanted the 2016 Rules with effect from 16th August 2024 and govern review applications; the correct rule on review is Rule 74

Court orders

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  1. 1.Application dismissed with no order as to costs
Jurisdiction invoked
Sections 13, 16 and 20 of the Employment and Labour Relations Act and the Employment and Labour Relations Court (Procedure) Rules 2024

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, "Nyandiago & 3 others v Sibo Water & Sanitation Company Limited (Cause 57 of 2020) [2024] KEELRC 2856 (KLR)", Case Analysis (2024). Application dated 20th September 2024 (ELRC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2856/eng@2024-11-20

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