Mwonzu v Kenyatta National Hospital (Employment and Labour Relations Cause E380 of 2020) [2024] KEELRC 2775 (KLR)
The bottom line
#Kenya's Employment Court raised a wrongly computed unfair termination award by recalculating it on gross salary, but refused remedies that were never pleaded.
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 Claimant/Applicant is entitled to a review of this Court's ruling and/or order delivered on 24th May 2024
- 2.Whether the final award should have been calculated on gross salary rather than basic salary
- 3.Whether the Claimant is entitled to a recommendation letter and certificate of long service
Key legal issues
#Jurisdiction to review the ruling of 24th May 2024
The ELRC has power under section 16 of the ELRC Act read with Rule 74 of the Employment and Labour Court (Procedure) Rules 2024 to review its judgments, awards, orders or decrees on the grounds of error apparent on the face of the record
Section 16 of the Employment and Labour Relations Court Act grants the Court power to review its decisions in accordance with the Rules. The new 2024 Rules (Rule 74) provide the review grounds including mistake or error apparent on the face of the record and clarification. The court found a miscalculation using basic instead of gross salary to be such an error and declined to hold that the Claimant should have appealed instead.
Whether the award should have been computed on gross salary
Yes; section 49(1)(c) of the Employment Act requires computation on gross monthly wage or salary, which includes basic pay plus allowances
The court held it erred in using basic salary instead of gross salary. Relying on Postal Corporation of Kenya v Andrew K. Tanui, gross salary is basic salary plus allowances before deductions. The revised figures used the gross pay of Kshs 75,511 for the 12 months' compensation and Kshs 37,960 for the 25 months' half salary, raising the total award to Kshs 1,855,732.
Recommendation letter and certificate of long service
Refused because not pleaded
The court held that parties are bound by their pleadings; a recommendation letter and certificate of long service were never pleaded in the suit and therefore cannot be granted through a review application. The respondent had also stated it had already availed a certificate of service under section 51 of the Employment Act.
Legal principles established
#- Gross monthly wage or salary under section 49(1)(c) of the Employment Act comprises basic salary plus allowances, before deductions, and compensation for unlawful termination must be computed on that basis
- A court may review its own award where there is an error apparent on the face of the record, such as use of basic instead of gross salary in the computation
Court orders
#- 1.Prayer for amendment of case number from ELRC Cause No E402 of 2020 to ELRC Cause No E380 of 2020 noted as spent as the correction was already made
- 2.Compensation for unlawful/unfair/illegal termination revised to Kshs 75,511 X 12 months = Kshs 906,132/=
- 3.Half (1/2) salary from 4th September 2016 to 14th November 2018 revised to Kshs 37,960/= X 25 months = Kshs 949,600/=
- 4.Total award revised to Kshs 1,855,732/= instead of Kshs 1,129,772/=
- 5.Prayer for recommendation letter and certificate of long service declined
- 6.Each party to bear their own costs of the application
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, Cap 8E, and Rule 74 of the Employment and Labour Court (Procedure) Rules 2024
Relief refused
#Recommendation letter
The issuance of a recommendation letter was not pleaded and cannot be granted through a review application
Certificate of long service
Not pleaded; the same reasoning applies as to the recommendation letter
Costs
Each party to bear their own costs of this application
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.
The court has noted there was an error of the face on record as it miscalculated using basic salary instead of gross
Total awarded is now Kshs 1,855,732/= instead of Kshs 1,129,772/=
The issuance of recommendation letter was not pleaded and cannot be granted through this application and the same applies to the certificate of long service. The same is declined.
Each party to bear their own costs of this application.
The court does not agree with the Respondent's contention that the Claimant ought to have filed an appeal instead of this review application.
Issues in the judgment
#The applicant's submissions attribute the Tanui authority to the Court of Appeal by quoting 'We are not persuaded by the appellant's argument', and the court's analysis also describes it as a Court of Appeal holding, which is consistent, but the judgment contains an internal date discrepancy: the application and prayer (c) refer to a ruling delivered on 24th May 2024 while paragraph 4 states 'in a ruling delivered on 24 April 2024'
Arithmetic inconsistency in the claimant's pleaded calculation: '(25 months X Kshs 23,050=Kshs 576,560/=)' - the multiplication of 25 by 23,050 does not equal 576,560
Arithmetic inconsistency in the revised compensation: 'Kshs 75,511X 12 months = Kshs 906, 132/=' - 75,511 x 12 equals 906,132, which is correct, but the revised half-salary figure 'Kshs 37,960/= X 25 months= Kshs 949,600/=' does not equate (37,960 x 25 = 949,000)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mwonzu v Kenyatta National Hospital (Employment and Labour Relations Cause E380 of 2020) [2024] KEELRC 2775 (KLR)", Case Analysis (2024). ELRC Cause No E380 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2775/eng@2024-11-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.