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ELRCAllowedNot stated in the judgment (application dated 8th January, 2024)

Kariuki & another v Multi Packaging Ltd t/a Print Pak (Employment and Labour Relations Cause 1030 of 2018) [2024] KEELRC 1740 (KLR)

Employment and Labour Relations Court
5 July 2024
1,082 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court corrected its own judgment maths, raising two unfairly fired workers' awards to Kshs 373,195.63 each.

What this practically means

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Executive summary

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The Claimants filed an application dated 8th January 2024 under sections 12 and 16 of the Employment and Labour Relations Court Act, 2011 and Rule 33 of the ELRC (Procedure) Rules, 2016 seeking review and setting aside of the judgment of November 3, 2023 to rectify an alleged arithmetical error and omission apparent on the face of the judgment. They contended that the tabulation of underpayments plus house allowance should have been Kshs 153,221.98 rather than Kshs 117,316.78 as reflected at paragraph 52(ii), and that the service pay award of Kshs 61,362.69 for each Claimant (15 days' pay for each of 9 years worked) expressly made at paragraph 49 was omitted from the final tally at paragraph 52. Supported by the affidavit of the 1st Claimant, Judy Rindi Kariuki, the application noted no appeal had been filed and that a letter to the Respondent seeking resolution went unanswered. The Respondent filed no response, and the matter proceeded by way of written submissions. The court, applying Rule 33 and the principle in National Bank of Kenya Ltd vs Ndungu Njau, held that a review lies to correct self-evident errors or omissions requiring no elaborate argument. It found the omission of service pay and an arithmetical error in the underpayments calculation - further noting the underpayments figure for May 2013 to April 2015 was itself miscalculated, raising underpayments to Kshs 205,470.94 per Claimant. The court allowed the review and altered the judgment of November 3, 2023, awarding each Claimant a total of Kshs 373,195.63 comprising one month's salary in lieu of notice, underpayments, service pay for 9 years, and 8 months' salary as compensation for unfair termination, with any subsequent decree to reflect the alteration.

Questions the Court framed

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

  1. 1.Whether the judgment of November 3, 2023 contains an arithmetical error and omission apparent on the face of the record warranting review
  2. 2.Whether the application for review should be allowed and the judgment rectified

Key legal issues

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01

Whether an arithmetical error and omission of part of an award amounts to an error apparent on the face of the record justifying review under Rule 33

Holding

Yes. The court found an omission of the service pay award and an arithmetical error in calculating underpayments, which are grounds for review under the ELRC Procedure Rules.

Reasoning

Rule 33 of the ELRC (Procedure) Rules 2016 permits review on account of a mistake or error apparent on the face of the record. The Applicants relied on this ground. On perusal, the court found that service pay for 9 years, expressly awarded at paragraph 49 of the judgment, was not captured at the final paragraph, and the underpayments figure contained a mathematical error. Such omission and error fall squarely within the review grounds and required no elaborate argument to establish.

p. 3
02

The scope of review as distinguished from appeal - whether erroneous legal conclusions can be reviewed

Holding

Review cannot be used as a second bite at the cherry; it is confined to self-evident errors, not disagreement with the court's legal reasoning.

Reasoning

Relying on National Bank of Kenya Ltd vs Ndungu Njau, the court restated that a review lies to correct apparent errors or omissions that are self-evident. It is not a sufficient ground that another judge could have taken a different view, or that the court misconstrued a statute or reached an erroneous conclusion of law. The court applied this to conclude that the arithmetical error and omission before it were proper grounds for review.

p. 3

Legal principles established

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  • A review may be granted to correct an apparent error or omission on the part of the court, provided the error is self-evident and does not require elaborate argument.

Court orders

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  1. 1.The application for review is allowed
  2. 2.The judgment delivered on November 3, 2023 is altered so that each Claimant is awarded: one month's salary in lieu of notice Kshs 11,818/=; underpayments Kshs 205,470.94/=; service pay for 9 years Kshs 61,362.69/=; 8 months' salary as compensation for unfair termination Kshs 94,544/=; total Kshs 373,195.63/= for each Claimant
  3. 3.Any subsequent decree arising therefrom shall reflect that alteration

The bench

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

Wrote the judgment

Jurisdiction invoked
Sections 12 and 16 of the Employment and Labour Relations Court Act, 2011 and Rule 33 of the Employment and Labour Relations Court (Procedure) Rules, 2016

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.

A review may be granted whenever the court considers that it is necessary to correct an apparent error or omission on the part of the court. The error or omission must be self-evident and should not require an elaborate argument to be established.
p. 3Test for review for error apparent on the face of the record
There was clearly an omission on the part of the court and this omission is one of the grounds for a review of a judgement or decree under the rules herein.
p. 3Omission of awarded relief as ground for review
I accordingly allow the application for review with the result that the judgement delivered on November 3, 2023 is altered to read that the Claimants are entitled to the following:
p. 3Final orders - alteration of judgment on review
Any subsequent decree arising therefrom shall accordingly refiect that alteration.
p. 3Final orders - decree to reflect alteration

Issues in the judgment

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minor

The judgment cites 'Section 16 of the Labour Relations Act, 2011' as the guiding law on review, but the application was brought under section 16 of the Employment and Labour Relations Court Act, 2011; the quoted provision ('The Court shall have power to review its judgements, awards, orders or decrees in accordance with the Rules') corresponds to the ELRC Act.

minor

The Applicants sought rectification of the total award to Kshs 320,946.67 for each Claimant, but the court, on its own recalculation including a further error in the underpayments figure, altered the total to Kshs 373,195.63 - a different figure than that sought.

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, "Kariuki & another v Multi Packaging Ltd t/a Print Pak (Employment and Labour Relations Cause 1030 of 2018) [2024] KEELRC 1740 (KLR)", Case Analysis (2024). Not stated in the judgment (application dated 8th January, 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1740/eng@2024-07-05

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