Ali v Grain Industries Limited (Cause 3 of 2020) [2026] KEELRC 1498 (KLR) (28 May 2026) (Ruling)

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT & LABOUR RELATIONS COURT** **AT MOMBASA** **CAUSE NO.3 OF 2020** **ISMAIL AHMED ALI ………………………………….……CLAIMANT** **VERSUS** **GRAIN INDUSTRIES LIMITED ……………………. RESPONDENT** **RULING** **Background** 1. By its Notice of Motion Application dated 1st October, 2024, the Respondent seeks the following; 2. THAT the application be certified urgent and service be dispensed with in the first instance. 3. THAT Pending the hearing and determination of this Application *inter partes*, the Honourable court be pleased to issue an order of stay to stay the release of the decretal sum deposited herein to the Applicant. 4. The court be pleased to correct the arithmetic errors contained in the judgment dated 13/5/2022, indicating the total amount awarded to the Claimant as KShs. 2,808,871 instead of KShs. 2,566,935.50. 4. Costs. 1. The Application is anchored on the grounds set out on its face and on the supporting affidavit sworn by Mohammed Nabil, the Respondent’s legal officer. 2. The Claimant opposes the Application on the basis of the grounds set out in the replying affidavit that he swore on 23rd February 2025. 3. This Court directed that the application be canvassed by way of written submissions. The parties complied. Their submissions are on record for the Court’s consideration. **The Application** 1. The Respondent contends that there is an obvious arithmetic error in the judgment delivered on 22 May 2022. The error requires correction and is rectifiable under section 99 of the Civil Procedure Act and Rule 34 of the court’s rules. In the body of the judgment, particularly on pages 17 and 19, the Judge awarded the Claimant various sums under various heads, totalling Kshs. 2,566,935.50. 2. However, in what appears to be an obvious arithmetic error, resulting from either an accidental slip on the part of the Judge or inadvertent omission, the Judge concluded that the Claimant was awarded KShs. 2,808,871 instead of the above-mentioned amount, KShs. 2,566,935.50. 3. The Respondent further states that on 19 September 2024, the Deputy Registrar ruled that she lacked jurisdiction to correct errors appearing in the judgment. The same would only be corrected by the Court that issued the Judgment. 4. The justice of this matter requires that the application be granted. **The Claimant’s Response** 1. In opposing the Application, the Claimant contends that the Applicant has repeatedly filed multiple applications seeking a stay of execution and a review of the same judgment and decree, despite those issues having already been determined by the court. The Claimant states that the Applicant previously filed applications dated 27th January 2023 and 22nd September 2023, upon which the court delivered rulings concerning a stay pending appeal and review under sections 80, 99, and 100 of the Civil Procedure Act. According to the Claimant, the issues presently being raised are therefore res judicata, and the court is *functus officio.* 2. The Claimant further avers that the Applicant filed two appeals, namely Grain Industries Limited v Ismail Ahmed Ali, Mombasa Court of Appeal Civil Appeal No. E043 of 2023 and Grain Industries Limited v Ismail Ahmed Ali, Mombasa Court of Appeal Civil Appeal No. E240 of 2024, both of which were determined by the Court of Appeal on 26th April 2024 and 7th November 2025, respectively. 3. He also states that the Deputy Registrar delivered a ruling on 19th September 2024 concerning the dispute, and that ruling has neither been appealed against, set aside, nor reviewed. 4. The Claimant argues that, having already pursued appeals, the Applicant is precluded from seeking review, and that, having previously sought review before the same court, the Applicant cannot file yet another review application. He contends that the application constitutes a blatant abuse of the court process and is intended merely to deny a successful litigant the fruits of his judgment. 5. The Claimant further asserts that the Court of Appeal has already determined that the complaints raised by the Applicant cannot be addressed under Section 99 of the Civil Procedure Act but must be pursued through an appeal. Accordingly, he contends that this court lacks jurisdiction to consider the Applicant’s grievances. 6. Furthermore, the Claimant asserts that the grounds relied upon in the current applications were previously articulated in the memorandum of appeal before the Court of Appeal and were unsuccessful. Consequently, the Applicant is barred from re-litigating the same issues before a subordinate court. **The Respondent’s Submissions on the Application** 1. Counsel for the Respondent submits in support of the Application that Section 99 of the Civil Procedure Act vests in the Court unfettered jurisdiction to correct and rectify the accidental slips and omissions in a judgment. To support this submission, reliance is placed on the case of **Parmar v African Express Airways [2023]KEELRC 2711[KLR],** and **Ndwiga v Principal Secretary, Ministry of Health & Another [2023]KEELRC 1013 [KLR].** 2. It is clear from the body of the judgment herein that at pages 17 through 19, the Court awarded a cumulative amount of KShs. 2, 566,935.50, but misstated the amount in the relief section as 2, 808,871.00. 3. The Respondent further submits that there was no delay in filing the instant application from 19th September 2024, when the Deputy Registrar of this Court directed that she did not have the requisite jurisdiction to entertain an application under Section 99 of the Civil Procedure Act, over the Judgment herein. **Claimant’s written submissions dated 11th March, 2026** 1. The Claimant’s Counsel submits that the court lacks jurisdiction. It is functus officio, as it has dealt with everything it would deal with post-judgment. Additionally, the judgment's veracity has been escalated to the Court of Appeal. To support this submission that the Court is *functus officio,* reliance is placed onFurther reliance is placed on **Telkom Kenya Ltd v Ochanda (Suing on His Own Behalf and on Behalf of 996 Former Employees of Telkom Kenya Ltd) (Civil Appeal 60 of 2013) [2014] KECA 600 (KLR) (9 May 2014) (Judgment**). 2. It is argued that the instant application is a review application that is disguised as one under the ‘ slip rule’ and as such one that this Court cannot entertain and grant under the stipulations of Section 99 of the Civil Procedure Act. To fortify the submission, the decision in **Ndwiga vs the Principal Secretary of Health** [supra] is cited. 3. This Court cannot exercise its review jurisdiction under section 80 of the Civil Procedure Act, as the judgment has already been the subject of two appeals before the Court of Appeal. To buttress this submission, reliance is placed on **Mary Wambui Njuguna v William De Mabala & 9 others [2018] KECA 140 (KLR**). 4. The Claimant further submits that the application is res judicata. The issue raised in the instant application was canvassed in an application filed on 22nd September 2023, which was dismissed. Accordingly, this Court lacks jurisdiction to entertain the issue again. 5. The Claimant urges the Court to note that the discrepancy between the figures in the body of the judgment and those in the final award was raised in ground 13 of the memorandum of appeal before the Court of Appeal. 6. The Claimant therefore argues that the Applicant is improperly seeking to reopen issues already decided by both this Court and the Court of Appeal. He submits that the repeated applications constitute an abuse of the court process and are intended to deprive him of the fruits of his judgment obtained four years earlier. 7. Lastly, the Judgment complained of was delivered on 13th May 2022, and the application was filed almost thirty months later. The delay has not been explained at all. **Analysis and determination** 1. I have carefully considered the Respondent’s application, the grounds upon which it is premised, the affidavit in support thereof, the Claimant’s replying affidavit, and the respective submissions by the parties’ Counsel, and distilled one principal issue for determination, whether the application is meritorious. 1. The slip rule is a narrow jurisdiction intended to correct accidental slips, clerical mistakes, typographical errors, omissions, or errors arising from accidental oversight in a judgment, decree, or order. It is not a vehicle through which a Court may revisit, reconsider, or alter the substance of its decision. 2. This Court holds that where there has been an inordinate and unexplained delay in seeking correction, the invocation of the slip rule is untenable. The rule is founded on the need to promptly rectify obvious errors so as to give effect to the Court’s true intention. A party that sleeps on its rights for an extended period cannot properly invoke the rule to reopen a matter that has long attained finality. 3. Undeniably, the Judgment of the Court that the Respondent seeks to have rectified was delivered on 13th May 2022. The Respondent’s instant application was filed on 1st October 2024, approximately two and a half years later. This delay, which I consider inordinate, has not been explained by the Respondent at all. 4. I take a further view that once a judgment has been appealed against, the jurisdiction of the trial Court to alter or correct the Judgment becomes severely circumscribed. The subject matter of the judgment is thereby placed before the Appellate Court, and any substantive intervention by the Court that rendered the decision risks encroaching upon the Appellate Court’s jurisdiction. Permitting the invocation of the slip rule in such circumstances would create the risk of parallel proceedings and potentially result in conflicting judicial outcomes. 5. The Claimant contended that the Judgment herein was appealed against, and that ground 13 of the appeal was on the discrepancy between the amounts in the body of the judgment and the reliefs’ section of the Judgment. The Respondent did not dispute this. 6. Accordingly, this Court, having found as it has hereinabove that the delay in bringing the instant application was inordinate and that the judgment was appealed against, holds that the application is improperly laid before this Court and is destitute of merit; it is hereby dismissed with costs. **Read, Signed and Delivered this 28th Day of May 2026.** **OCHARO KEBIRA** **JUDGE**