Sammy Njoroge v Shiva Carriers Limited & Attorney General [2020] KEELRC 1467 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT

AT KISUMU

CASE NO. 287 OF 2014

(Before Hon.  Justice Mathews N. Nduma)

SAMMY NJOROGE..............................................CLAIMANT/RESPONDENT

VERSUS

SHIVA CARRIERS LIMITED...................1ST DEFENDANT/RESPONDENT

ATTORNEY GENERAL............................2ND DEFENDANT/RESPONDENT

RULING

1. The 1st respondent/applicant prays for an order in the following terms:

2. That the court be pleased to review and set aside and correct the judgment delivered on 21st February 2019 with regard to the amount awarded on unpaid leave days.

3. That the application is on the basis that the court found that the plaintiff’s monthly salary was Kshs. 20,000 per month which figure was provided by the plaintiff himself and not disputed by the 1st defendant.  That there is an error on the face of the record in that the court applied a monthly salary of Kshs. 40,000 in computing the award.

4. The suit was based on an amended statement of claim dated 22nd October 2014 and filed on 5th November 2014 in which the claimant pleaded that he was owed unpaid leave for 3 years at Kshs. 40,000 per year in the sum of Kshs. 120,000.  Indeed even in the initial statement of claim was claimed unpaid leave at the rate of Kshs. 40,000 a month for two months.

5. The respondent did not file an amended response to the amended statement of claim.  Salary of Kshs. 40,000 per month at the time of separation was not disputed and therefore constituted an admission in law and the court found accordingly.

6. The court had also found that the claimant earned Kshs. 20,000 a month at the time he was employed on 17th August 2010.

7. There is no contradiction in the judgment because the court found that the claimant earned Kshs. 40,000 a month at the time of separation two years later.

8. The application in review lacks merit and is dismissed with costs.

Ruling Dated, Signed and delivered this  9th day of  March, 2020

Mathews N. Nduma

Judge

Appearances

Mr. Angu for claimant

Mr. Yogo for respondent

Chrispo – Court Clerk