Margaret Auma Ingwe v Kenya Power And Lighting Co. Ltd [2015] KEELRC 489 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI

CAUSE NO 263 OF 2013

MARGARET AUMA INGWE..........................................................CLAIMANT

VERSUS

KENYA POWER AND LIGHTING CO. LTD.............................RESPONDENT

RULING

1.      By an award dated 5th June 2015, I entered judgment for the Claimant in the sum of Kshs.807,912. 00 made up Kshs.718,144. 00 being eight months' salary in compensation for unfair termination of employment and Kshs.89,768. 00 being one month's salary in lieu of notice.I also allowed the Respondent’s counterclaim in the sum of Kshs.642,618. 00.

2.      The Claimant subsequently filed an application for review of the award on 19th June 2015. The application is based on the ground that the Court erroneously awarded the Claimant one month's salary in lieu of notice instead of the four months' salary set in the applicable Collective Bargaining Agreement (CBA).

3.      In its grounds of opposition dated 28th September 2015 and filed in Court on even date, the Respondent stated that following the holding that the reason for termination of the Claimant's employment was valid, the Court proceeded to exercise its discretion to award the Claimant one month's notice pay instead of the four months set out in the CBA.

4.      According to the Respondent, the four months' notice pay is only available when an employee is terminated for an offence that does not amount to gross misconduct. Further, the Claimant can only challenge the exercise of the discretion of the Court through an appeal and not an application for review.

5.      The powers of this Court to review its own decisions are donated by Section 16 of the Employment and Labour Relations Court Act and Rule 32 of the Procedure Rules.

6.      Rule 32(1) provides as follows:

32. (1) A person who is aggrieved by a decree or an order of the Court may apply for a review of the award, judgment or ruling—

(a) if there is a discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the knowledge of that person or could not be produced by that person at the time when the decree was passed or the order made; or

(b) on account of some mistake or error apparent on the face of the record; or

(c) on account of the award, judgment or ruling being in breach of any written law;

7.      The decision to award the Claimant notice pay was informed by the finding that the termination of her employment was procedurally unfair. The Court however inadvertently applied the one month's notice pay set out under Section 35 of the Employment Act, 2007 instead of the four months' notice pay provided for under Clause 3(viii) of the CBA. This constitutes an error apparent on the face of the record.

8.      The award in favour of the Claimant is therefore reviewed as follows:

8months' salary in compensation...............Kshs.718,144. 00

4month's salary in lieu of notice...................Kshs.359,072. 00

Total.................................Kshs.1,077,216. 00

9.      Each party will bear their own costs.

10.    Orders accordingly.

DATED SIGNED AND DELIVERED IN OPEN COURT AT NAIROBI THIS 30TH DAY OF SEPTEMBER 2015

LINNET NDOLO

JUDGE

Appearance:

Mr. Rakoro for the Claimant

Mr. Molenje for the Respondent