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ELRCPartially AllowedNot stated in the judgment text· [2024] KEELRC 1205 (KLR)

Togom v Radar Limited (Employment and Labour Relations Appeal E003 of 2023) [2024] KEELRC 1205 (KLR)

Employment and Labour Relations Court
21 May 2024
HWHellen Wasilwa
4,112 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court corrected its own wage calculation error, nearly doubling a worker's overtime and holiday pay award to Kshs 386,319.68.

What this practically means

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Executive summary

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This is a ruling on a Notice of Motion dated 23rd February 2024 in which the Appellant sought partial review of the Court's judgment of 1st February 2024, contending that the Court had made errors in calculating overtime and public holidays pay. The Applicant argued the Court had established 2592 overtime hours and 33 public holiday days worked over three years but had applied a multiplier of 1 instead of 1½ for overtime and 2 for public holidays, and proposed an hourly rate of Kshs 212.60 drawn from the Wage Order of 2018. He alternatively sought referral of the tabulations to the Labour Office and apportionment of costs. The Respondent opposed, contending the application was in substance an appeal disguised as review, that no error apparent on the record existed, and that costs could not be revisited on review. The Court first disposed of the jurisdictional objection, holding that Rule 33 of the ELRC (Procedure) Rules 2016 empowers it to review its own decree or orders. It then found that, contrary to section 6 of the Regulations of Wages (General) Order and section 7 of the Regulations of Wages (Protective Security Services) Order, the Court had by error used a multiplier of 1 instead of 1½ and 2 in computing overtime and holiday pay. The application was allowed: overtime pay was reviewed to approximately Kshs 296,000 and holiday pay to Kshs 90,319.68, totalling Kshs 386,319.68 less statutory deductions. No referral to the Labour Office was made, no costs were apportioned, and the rest of the judgment remained unchanged.

Key legal issues

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01

Jurisdiction to review own judgment

Holding

The Court has jurisdiction to review its own decree or order under Rule 33 of the ELRC (Procedure) Rules 2016, notwithstanding that an appeal lay.

Reasoning

The Respondent argued the Court could not review its judgment at that stage and the Applicant's remedy was an appeal. The Court examined Rule 33 of the ELRC (Procedure) Rules 2016, which permits a person aggrieved by a decree or order to apply for review on grounds including error apparent on the face of the record. The Court held the rule empowers it to review its own decree, and the Respondent's contrary submission was erroneous.

p. 7
02

Error apparent on the face of the record in the calculation

Holding

The Court found an apparent error in that it had used a multiplier of 1 instead of 1½ for overtime and 2 for public holidays pay, and reviewed the award accordingly.

Reasoning

The Court accepted the statutory framework in section 6 of the Regulations of Wages (General) Order and section 7 of the Regulations of Wages (Protective Security Services) Order prescribing multipliers of 1.5 and 2. Comparing the judgment's calculations with the law, it found it had by error employed a multiplier of 1 instead of 1½ and 2 respectively, making the review application merited. It substituted recalculated figures for overtime and holiday pay.

p. 8

Legal principles established

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  • Under Rule 33 of the ELRC (Procedure) Rules 2016, the ELRC can review its own decree or orders on grounds of discovery of new matter, error apparent on the face of the record, need for clarification, or other sufficient reason.
  • Overtime is payable at one and one-half times the normal hourly rate, and time worked on a rest day or public holiday at twice the normal hourly rate.

Court orders

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  1. 1.Review of paragraph 58 of the judgment: overtime pay recalculated at the established 2592 hours with hourly rate of 114.04, approximately Kshs 296,000
  2. 2.Review of the holiday pay calculation: 114.04 hourly rate x 33 days x 12 hours daily x 2 = 90,319.68
  3. 3.Paragraph 67 reviewed to read: Overtime = Kshs 296,000; Holiday Pay = Kshs 90,319.68; Total = Kshs 386,319.68 less statutory deductions
  4. 4.The rest of the judgment remains unchanged
Jurisdiction invoked
Section 80 of the Civil Procedure Act, Orders 45 Rule 1(a)&(b) and 2(2) of the Civil Procedure Rules, and Rule 33 of the ELRC (Procedure) Rules 2016

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, "Togom v Radar Limited (Employment and Labour Relations Appeal E003 of 2023) [2024] KEELRC 1205 (KLR)", Case Analysis (2024). Not stated in the judgment text. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1205/eng@2024-05-21

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