Inyangu v KCB Bank (K) Limited (Cause E641 of 2021) [2024] KEELRC 2491 (KLR)
The bottom line
#What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the court should review and vary the award of general damages from Kshs 500,000/= to Kshs 2,000,000/= to match the award in the colleagues' suit ELRCC/E618/2021
- 2.Whether the court should approve payment of tabulated overtime allowances of Kshs 296,475.67/=
- 3.Whether the Respondent was in contempt of court for failing to issue the Claimant a certificate of service
- 4.Whether the registry should amend the mis-spelt name of the Respondent on the judgment and decree
Key legal issues
#Whether the judgment awarding general damages of Kshs 500,000/= could be varied on review to match the Kshs 2,000,000/= awarded to the Claimant's colleagues in a separate suit
The application for review fails; the discrepancy in quantum is a matter for appeal to the Court of Appeal, not for review
Rule 33 permits review only on discovery of new and important matter, error apparent on the face of the record, need for clarification, or other sufficient reason. The award to colleagues in a suit to which the Claimant was not a party, though he suffered similar circumstances, does not qualify. General damages are discretionary and differences in quantum turn on the evidence and the court's view in each case; a judge may reach a different conclusion on similar facts but that is not an error apparent on the record justifying review.
Whether the Respondent was in contempt for allegedly failing to issue a certificate of service
No contempt was established; the certificate was ready for collection and the threshold of proof was not met
The Respondent attached the certificate of service to its Replying Affidavit, showing it was ready for collection even if the Claimant had not collected it. Contempt is a serious allegation that must be proved to a standard approaching beyond reasonable doubt, and the court was not satisfied the allegations met that threshold.
Whether the court could correct the clerical mis-spelling of the Respondent's name from 'KBC Bank Kenya Limited' to 'KCB Bank Kenya Limited' on the judgment and decree
The court noted the clerical error among the innocent orders sought, but the application as a whole was dismissed with no order as to costs
The judgment records the request to amend the mis-spelt name of the Respondent as a clerical error in the judgment and decree of 24th November, 2022. In dismissing the review application, the court observed the innocent nature of the orders sought and made no order as to costs. No separate order effecting the amendment appears in the final orders.
Legal principles established
#- Divergence between the quantum of general damages awarded in one case and another on similar facts is a matter for appeal, not a ground for review under Rule 33
- Contempt of court must be proved to a standard approaching beyond reasonable doubt
- A judge of concurrent jurisdiction cannot sit on appeal over a decision of a colleague
Court orders
#- 1.The application for review dismissed
- 2.No order as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Section 16 of the Employment and Labour Relations Court Act and Rule 33 of the Employment and Labour Relations Court (Procedure) Rules, 2016
Relief refused
#Variation of general damages from Kshs 500,000/= to Kshs 2,000,000/=
An award of general damages is discretionary and can only be challenged on appeal, not on review under Rule 33; the applicant was not a party to the colleagues' suit
Approval of overtime allowance tabulation of Kshs 296,475.67/=
The ruling of 27th February, 2023 was clear that overtime was not awarded to the Claimant and could not be assessed
Citation and punishment of the Respondent for contempt of court
The certificate of service was ready for collection; the allegations did not meet the threshold for contempt
Costs
No order as to costs, considering the circumstances of the application and the innocent nature of the orders sought
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In conclusion the application for review will be dismissed but with no order as to costs considering the circumstances of the application and the innocent nature of the orders sought.
an award of general damages is discretionary and can only be challenged on appeal
that cannot amount to a ground for review under rule 33. It is a proper case for appeal to a higher court. In this case, the Court of Appeal.
Contempt of Court is a serious allegation and ought to be proved to almost beyond reasonable doubt.
I cannot sit on appeal over a decision of colleague of concurrent jurisdiction
It is so ordered.
Issues in the judgment
#The judgment inconsistently dates the colleagues' judgment: paragraph 6 states it was delivered on 30th November, 2021 while paragraph 19 states 30th November, 2022
The overtime figure is inconsistently stated as Kshs 296,475.67/= in the application and Kshs 296,457.67/= in the Claimant's affidavit averments
Paragraph numbering skips from 29 to 33, with no paragraphs 30 to 32
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Inyangu v KCB Bank (K) Limited (Cause E641 of 2021) [2024] KEELRC 2491 (KLR)", Case Analysis (2024). ELRCC/E641/2021 - Notice of Motion dated 14th November, 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2491/eng@2024-10-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.