Ken Oluoch v Postal Corporation of Kenya Limited [2017] KEELRC 449 (KLR)

REPUBLIC OF KENYA

EMPLOYMENT AND LABOUR RELATIONS COURT

AT NAIROBI

CAUSE NO. 853 OF 2010

KEN OLUOCH..................................................................CLAIMANT

VERSUS

POSTAL CORPORATION OF KENYA LIMITED....RESPONDENT

Ongoji for claimant

Miller for respondent

RULING

1. The respondent seeks an order for review of the judgment of the court delivered on the 9th December 2016 on the grounds that:-

(i.) The gratuity was awarded based on the gross salary instead of the basic salary as provided in the contract of service.

(ii.) The court ought to have awarded equivalent of one month’s salary in lieu of notice and not three months’ salary.

(iii.) The claimant ought not to have been granted 10 months’ salary as compensation since he had not made request for renewal of contract.

2. The application is supported by an affidavit of Julius Opio sworn on 13th August of 2012.

3. The clamant filed grounds of opposition to the application on 16th May 2016 as follows: -

4. The application is misconceived, mischievous and in bad faith since it lacks basis.

5. There is no error on the face of the judgment and the application is a disguised appeal on the decision of the court.

Determination

Gratuity

6. The court is satisfied that the award of gratuity ought to be calculated at a rate of 25% of the basic salary earned during the period and not on the gross salary in terms of the gratuity clause in the contract of service signed by the parties. The award in judgment of the court is reviewed accordingly.

Notice Pay

7. The court is satisfied that the claimant was entitled to the equivalent of three months’ salary in lieu of notice in terms of the termination clause in the contract of service signed by the parties.

Compensation

8. This was a deliberate finding of fact and law by the court and may only be challenged by an appeal to the Court of Appeal and not by an application for review.

9. The judgment of the court is reviewed accordingly.

10. Each party to bear their own costs of the application.

Dated, Signed and Delivered on this 17th Day of November 2017

MATHEWS NDERI NDUMA

JUDGE