Kenya Hotels and Allied Workers Union v Green View Guest House & another (Cause E002 of 2022) [2023] KEELRC 1501 (KLR) (22 June 2023) (Ruling)
Neutral citation:
[2023] KEELRC 1501 (KLR)
Republic of Kenya
Cause E002 of 2022
CN Baari, J
June 22, 2023
Between
Kenya Hotels and Allied Workers Union
Claimant
and
Green View Guest House
1st Respondent
Joshua Okoth Migire
2nd Respondent
Ruling
1.Before Court is the Claimant/Applicant’s motion application dated January 2, 2023 and filed in Court on January 6, 2023, brought pursuant to rule 33(1) of the Employment and Labour Relations Court (Procedure) Rules. The Applicant seeks that the Court reviews part of the judgment delivered on December 8, 2022, and that the costs of the application be provided for.
2.The application is supported by grounds on the face of the motion and the affidavit of Mr. Chadwick Oloto Ng’ono, sworn on January 3, 2023.
3.The Applicant avers that the Court in its judgment of December 8, 2022, failed to award part of the reliefs sought on the basis that they were not proved.
4.The Applicant avers that when it filed its memorandum of claim, it attached the general wage guideline in support of its claim for salary under payment. It is the Applicant’s position that the general wage order was not captured and hence the failure by the Court to consider in making the award.
5.The Applicant seeks that the Court reviews its judgment and make awards in the amount of Kshs. 502,794.00, on account of pending leave, public holidays, off days and a service gratuity.
6.The Respondent did not reply to the motion.
Determination
7.I have considered the application, the grounds and affidavit in support and the Applicant’s written submissions. The issue for determination is whether the Applicant has established grounds for review of the judgment of this Court rendered on 8th December, 2022.
8.Section 16 of the Employment and Labour Relations Court Act, empowers this court to review its judgments, awards, orders or decrees in accordance with the Employment and Labour Relations Court (Procedure) Rules, 2016.
9.Further, rule 33 (1) of the Employment and Labour Relations Court (Procedure) Rules, 2016, provides as follows on review:
10.The Applicant’s application for review is premised on the assertion that the Court did not consider the general wage guideline produced by the Applicant in evidence, hence the award made.
11.In National Bank of Kenya Ltd vs Ndungu Njau (1997) eKLR the Court stated:
12.The court in paragraphs 22, 23 and 24 of the judgment has addressed the issues relating to the claimant/applicant’s prayers for awards on account of leave, salary under payment, public holidays, off days and a service gratuity.
13.Looking at the items on account of which the judgment is sought to be reviewed, the issues therein are neither errors nor omissions on the part of the Court as to meet the threshold for grant of review orders. The issues, instead, are matters that can only be addressed before an Appellate Court, as to do so herein, would amount to this Court sitting on appeal in its own judgment.
14.In Joseph Kipkemboi Tanui v Chief Defence Forces & 2 others [2020] eKLR, it was held that an appeal lies for an error of judgment, while an error apparent on the face of the record is the subject for review.
15.In conclusion, I find and hold that the applicant’s application does not meet the threshold for grant of review orders, and is hereby dismissed.
16.The Respondents did not oppose the application; hence I make no orders on costs.
17.Orders of the court.
SIGNED, DATED AND DELIVERED BY VIDEO-LINK AND IN COURT AT KISUMU THIS 22ND DAY OF JUNE, 2023.C. N. BAARIJUDGEAppearance:Mr. Ngame present for the Claimant/ApplicantN/A for the RespondentsMs. Christine Omolo-C/A