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ELRCPartially AllowedNot stated in the judgment· [2019] KEELRC 77 (KLR)

Johh Elego & 103 others v Press Master Limited [2019] KEELRC 77 (KLR)

Employment and Labour Relations Court
20 December 2019
3,140 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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A Kenyan employment court corrected a multimillion-shilling terminal dues calculation and ruled that service years count from day one of work, even before a formal contract was signed.

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 Maureen Onyango J on 20th December 2019, determines two interlocutory applications arising from a judgment of Nduma J delivered on 10th August 2018 awarding the Claimants terminal dues for unlawful termination. The Respondent sought a stay of proceedings and execution pending appeal, arguing among other grounds that the court was functus officio when it ordered the filing of a computation. The Claimants sought review of the order of 28th January 2019 adopting their pre-judgment computation of Kshs.64,859,427 instead of the post-judgment computation. The Court found, and the parties agreed, that the judgment required review to correct the apparent error in adopting the wrong computation. It held that gratuity is computed as 15 days' basic salary divided by 26 working days per month for each completed year of service, and that years of service must be reckoned from actual continuous service, including periods worked as casuals before issuance of employment contracts. It noted that 19 claimants who had left the company were not entitled to compensation. The Respondent's stay application was declined as premature since the decretal sum payable to each claimant was yet to be ascertained. The Court directed the Claimants to prepare and serve a fresh tabulation of terminal dues within 30 days, the Respondent to confirm or file its own computation within 15 days of service, and fixed mention for 10th February 2020. No costs order was made.

Key legal issues

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01

Review of the order adopting the pre-judgment computation

Holding

Review allowed in principle; parties agreed the Court adopted the wrong computation and the order required correction to reflect the post-judgment tabulation

Reasoning

Rule 33(1) of the ELRC Procedure Rules permits review for error apparent on the face of the record, clarification or other sufficient reason. Both parties agreed the judgment needed review because the pre-judgment computation of Kshs.64,859,427 was adopted instead of the post-judgment computation. The Court therefore proceeded to determine the correct computation of each award head, principally gratuity, while noting the respondent's own figures were disputed only on gratuity.

p. 3
02

Computation of years of service for gratuity

Holding

Years of service include the period worked before issuance of employment contracts, including service as casuals

Reasoning

The CBA does not exclude pre-contract years of service, and the Judge in the main judgment found all claimants unionsable and entitled to CBA terms, including casuals with over three months' service. The Court therefore held continuous service is reckoned from actual commencement date. However, the 19 claimants who had left the company before the dismissal are excluded from compensation.

p. 4
03

Stay of execution pending appeal

Holding

Stay application declined as premature because the decretal sum is not yet ascertained

Reasoning

Order 42 Rule 6(2) of the Civil Procedure Rules and Rule 5(2)(b) of the Court of Appeal Rules govern stay, requiring substantial loss, absence of unreasonable delay and security. The Court found no immediate threat of execution since the decretal sum payable to each claimant had yet to be ascertained following the review directions, and noted the appeal grounds could be resolved if parties agreed on the correct computation.

p. 4

Legal principles established

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  • Years of service for gratuity and terminal dues are computed from the actual date of continuous service, including periods worked as a casual before issuance of a written contract of service
  • An application for review may lie notwithstanding a pending appeal where the review corrects an order that is not the subject of the appeal
  • Gratuity under the applicable CBA is computed on basic salary divided by 26 days (days worked per month) multiplied by years of service

Court orders

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  1. 1.Declined the Respondent's application for stay of proceedings and execution as premature
  2. 2.Directed the Claimants to prepare a fresh tabulation of terminal dues in line with the Court's clarification and serve the same on the Respondent within 30 days
  3. 3.Directed the Respondent to within 15 days of service confirm the computation or file and serve the Claimants with its own computation in court
  4. 4.Directed the case to be mentioned on 10th February 2020 for adoption of computation or further orders
Jurisdiction invoked
Rule 33(1) of the Employment and Labour Relations Court (Procedure) Rules 2016 (review) and Order 42 Rule 6 of the Civil Procedure Rules 2010 (stay pending appeal)

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, "Johh Elego & 103 others v Press Master Limited [2019] KEELRC 77 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/77/eng@2019-12-20

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