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ELRCPartially AllowedNot stated in judgment· [2025] KEELRC 595 (KLR)

Oluoch v Egerton University & 2 others (Petition E003 of 2024) [2025] KEELRC 595 (KLR)

Employment and Labour Relations Court
28 February 2025
873 words in judgment
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The bottom line

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Kenya's Employment Court in Nakuru corrected its own judgment, nearly doubling an unfairly dismissed worker's compensation by using his actual final salary instead of his 2011 starting pay.

What this practically means

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Executive summary

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The Petitioner had succeeded in a petition in which he was awarded a total of Kshs. 2,908,536 less statutory deductions, being general damages for violation of his constitutional rights under Article 41 and for constructive dismissal, by a judgment delivered on 18th September 2024. He applied for review on the ground that the Court had used his 2011 appointment gross monthly salary of Kshs. 113,567, instead of his most recent gross monthly salary of Kshs. 235,243, in computing compensation. He exhibited his March 2022 pay slip and a demand letter showing the current salary. The Respondents opposed, arguing the pay slip was fresh evidence never availed at trial and that the demand letter was not evidence of salary. The Court found the Respondents knew the Petitioner's last salary and that the judgment contained an obvious error in applying the 2011 rate. It held the pay slip was not truly fresh evidence, being a statutory itemised pay statement under Section 20 of the Employment Act generated and held by the employer, and its omission at trial should not unjustly defeat review. Relying on Rule 74 of the E&LRC (Procedure) Rules 2024, including mistakes apparent on the face of the record and any other sufficient reason, and finding the judgment did not conform to Section 49(1)(c) of the Employment Act, the Court reviewed and varied the judgment, awarding 8 months' gross salary at Kshs. 235,343 and correcting the total to Kshs. 3,881,944 subject to statutory deductions, with no order on the costs of the Application. The review application was decided on affidavits and submissions by consent.

Key legal issues

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01

Whether review lies where the judgment adopted an outdated salary rate

Holding

Review was granted; the judgment contained an obvious error in adopting the 2011 appointment salary instead of the 2022 salary at dismissal, constituting a sufficient reason under Rule 74.

Reasoning

The Court found it obvious that the judgment contained an error, having applied the salary rate applicable on appointment in 2011, eleven years before the 2022 rate. It noted the salary was common knowledge not to have remained static. Even absent the other Rule 74 grounds, this amounted to 'any other sufficient reason' justifying review, and the judgment did not conform to Section 49(1)(c) of the Employment Act.

p. 2
02

Whether the March 2022 pay slip was inadmissible fresh evidence

Holding

The pay slip was not fresh evidence prejudicial to the Respondents; it is a statutory document generated and held by the employer, and the Petitioner's omission to exhibit it at trial should not produce an unjust result.

Reasoning

The Court held that an itemised pay statement is a statutory document which the employer generates and keeps in its custody, so it was known to both parties at trial. The Respondents could not be disadvantaged by its admission on review, and the Petitioner's omission should not have the unjust effect of denying review once the correct salary was clarified.

p. 2

Legal principles established

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  • An employer is statutorily required under Section 20 of the Employment Act to supply the employee an itemised written pay statement, and such a document is generated and held by the employer, so it cannot be treated as truly fresh evidence against the employer.
  • Under Rule 74 of the E&LRC (Procedure) Rules 2024, 'any other sufficient reason' for review carries similar weight as the enumerated grounds and is a matter of the Court's discretion.
  • Compensation for unfair termination under Section 49(1)(c) of the Employment Act must be computed on the salary earned at the time of dismissal, not at appointment.

Court orders

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  1. 1.The Judgment delivered on 18th September 2024 is reviewed and varied
  2. 2.The Petitioner is granted equivalent of 8 months' gross salary as compensation for unfair termination, at Kshs. 235,343 x 8 = Kshs. 1,881,944
  3. 3.The total awarded is corrected to Kshs. 3,881,944 subject to statutory deductions
  4. 4.No order on the costs of the Application
Jurisdiction invoked
Rule 74 of the E&LRC (Procedure) Rules 2024 (review of the Court's own judgment)

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, "Oluoch v Egerton University & 2 others (Petition E003 of 2024) [2025] KEELRC 595 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/595/eng@2025-02-28

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