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ELRCPartially AllowedNot stated in excerpt

Maina v Brava Food Industries Limited (Cause 655 of 2018) [2023] KEELRC 1933 (KLR)

Employment and Labour Relations Court
4 August 2023
1,460 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court corrected a maths error in a redundancy payout but refused extra NSSF and NHIF deductions the employer hadn't justified.

What this practically means

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Executive summary

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This is a ruling on the respondent's notice of application dated 29.03.2023 seeking review of the court's judgment of 16.02.2023 in a redundancy claim, brought under sections 1A, 1B, 3A and 80 of the Civil Procedure Act, Order 45 Rule 1 of the Civil Procedure Rules 2010, Rule 33(1) of the Employment and Labour Relations Court Act and Article 159(2)(d) of the Constitution. The underlying judgment had declared the claimant's termination on account of redundancy wrongful and unfair, upheld the respondent's computation of redundancy dues at Kshs.957,099.83, awarded two months' salary as compensation (Kshs.320,000.00), giving a total of Kshs.1,277,099.83, and, after deducting Kshs.692,000.00 already received, ordered payment of Kshs.585,099.83 less PAYE. The respondent argued the judgment erroneously deducted net payments from a gross award and that proper statutory deductions (PAYE, NSSF, NHIF) would yield only Kshs.207,385.50. The claimant opposed, contending any grievance lay on appeal and that the NSSF/NHIF deductions were belated and unfounded. The court agreed a mathematical error existed on the face of the record but confined the correction: the amount payable is the gross of Kshs.1,277,099.83 less PAYE and less Kshs.692,000.00 already received. Deductions of NSSF and NHIF were found unfounded. Order 2 of the judgment was deleted and substituted, with payment due by 01.10.2023, failing which interest at court rates runs from 04.08.2023. As the error was the court's own, each party was ordered to bear its own costs of the application.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether there is a mathematical error apparent on the face of the record in the judgment of 16.02.2023
  2. 2.Whether the deduction of NSSF and NHIF (in addition to PAYE) from the award is justified
  3. 3.Whether the judgment should be reviewed and the amount payable recomputed

Key legal issues

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01

Existence of an error apparent on the face of the record

Holding

The court found a mathematical error: the judgment had deducted the net amount paid (Kshs.692,000.00) from the gross award (Kshs.1,277,099.83), producing Kshs.585,099.83 instead of a proper computation of gross less PAYE less amounts already received.

Reasoning

The respondent applied for review under section 80 of the Civil Procedure Act and Order 45 Rule 1, alleging the judgment mixed gross and net figures. The court agreed that subtracting net payments from a gross award was erroneous, but confined the correction to the parties' own agreed figures. It declined to introduce NSSF and NHIF deductions, holding those unfounded, and corrected only the identified mathematical error.

p. 4
02

Whether NSSF and NHIF should be deducted

Holding

Rejected - the respondent did not justify the deductions.

Reasoning

The respondent urged that the computation should deduct NSSF and NHIF using current statutory calculations, yielding Kshs.207,385.50. The claimant opposed, saying this was a belated factual issue that should have been raised at trial. The court agreed the deductions were not justified and returned them as unfounded, limiting the deduction to PAYE only.

p. 4
03

Costs of the review application

Holding

Each party to bear own costs because the error was the court's own.

Reasoning

Although the review was partly successful, the court acknowledged the mistake originated from its own judgment. It therefore declined to award costs to either side and directed each party to bear its own costs of the application.

p. 4

Legal principles established

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  • An error apparent on the face of the record in the computation of a decretal amount justifies review of the judgment

Court orders

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  1. 1.Order 2 in the judgment delivered on 16.02.2023 is deleted and substituted with: the respondent to pay the claimant a sum of (Kshs.1,277,099.83 less PAYE) and less Kshs.692,000.00 net already received by the claimant, to pay by 01.10.2023 failing interest at court rates from 04.08.2023
  2. 2.Each party to bear own costs of the application

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Sections 1A, 1B, 3A and 80 of the Civil Procedure Act, Order 45 Rule 1 of the Civil Procedure Rules 2010, Rule 33(1) of the Employment and Labour Relations Court Act and Article 159(2)(d) of the Constitution

Relief refused

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Deduction of NSSF and NHIF from the award as urged by the respondent

The applicant did not justify those statutory deductions; the court found them unfounded

p. 4

Costs

Each party to bear own costs of the application

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

That computation is reviewed and substituted with the amount payable as (Kshs.1, 277,099.83 less PAYE) and less Kshs.692,000.00 net already received.
p. 4Review and recomputation of the award
Order 2 in the judgment delivered herein on 16.02 2023 is deleted and inserting: The respondent to pay the claimant a sum of (Kshs.1, 277,099.83 less PAYE) and less Kshs.692,000.00 net already received by the claimant, and, to pay by 01.10.2023 failing interest at court rates be payable thereon from 04.08.2023.
p. 4Final orders
The error was by the Court and each party to bear own costs of the application.
p. 4Costs

Issues in the judgment

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minor

The coram identifies the judicial officer as 'PRINCIPAL JUDGE' rather than a rank among the standard titles (J, etc.), and the case number of the underlying suit is not stated in the ruling.

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, "Maina v Brava Food Industries Limited (Cause 655 of 2018) [2023] KEELRC 1933 (KLR)", Case Analysis (2023). Not stated in excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1933/eng@2023-08-04

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