https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1333

Amalgamated Union of Kenya Metal Workers v Load Trailers (E.A) Limited (Cause 1340 of 2016) [2026] KEELRC 1333 (KLR) (14 May 2026) (Ruling) Neutral citation: [2026] KEELRC 1333 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Cause 1340 of 2016 MA Onyango, J May 14, 2026 Between Amalgamated Union of Kenya Metal Workers Claimant and Load Trailers (E.A) Limited Respondent Ruling 1.Judgment in this suit was delivered on 20th April, 2018 in favour of the Claimant. On 6th March, 2025 the court delivered a ruling on tabulation of terminal dues for the Grievants. The ruling elicited two applications, one by the Respondent and the second one by the Claimant. This ruling is in respect of the 2 applications. 2.The 1st Application is a Notice of Motion dated 30th April 2025, in which the Respondent seeks the following orders:a.Spent.b.That the Applicant herein was not notified of the delivery of the Ruling on 6th March, 2025 and only became aware of the same on 2nd April, 2025.c.That there is an apparent error/mistake on the Ruling delivered on 6th March, 2025 as it adopted tabulations for some former employees who were not members of the Claimant Union and thus the Ruling should be reviewed or set aside.d.That the Applicant is apprehensive that the Claimant might proceed to appoint auctioneers to execute the Ruling dated 6th March, 2025.e.That the Applicant avers that unless restrained by the orders of the Honourable Court the Claimant/Decree holder intends to issue instructions to auctioneers to attach the assets of the Applicant to its detriment.f.That attempts to reach out to the Claimant/Decree Holder to agree on a mode of settlement of the awarded sum have borne no fruits. 3.The application is supported by the affidavit of JAGDEEP SINGH BHACHU, a director of the Applicant and the following grounds:i.That on 6th March, 2025 this Honourable Court delivered a Ruling on Tabulation of arrears and terminal dues, due to the grievant employees as per the terms of the Collective Bargaining Agreement.ii.That the Applicant herein was not notified of the delivery of the Ruling on 6th March,2025 and only became aware of the same on 2nd April, 2025.iii.That there is an apparent error/mistake on the Ruling delivered on 6th March as it adopted tabulations for Chrispus Muli Wambua, Kisilu Muli, Erustus Maingi Masila, Andrew Wanjala Nyongesa, Jeremia Sila Muthama, Nicholas Musembi, Protus Kiugwa, Mutisya Muthoka, Chalo Mwasya and Wambua Musyimi who were not members of the Claimant Union and thus the Ruling should be reviewed or set aside.iv.That the Claimant is not entitled to claim on behalf of former employees who were not members of the Claimant Union.v.That the Applicant is apprehensive that the Claimant might proceed to appoint auctioneers to execute the Ruling dated 6th March, 2025.vi.That the Applicant avers that unless restrained by the orders of the Honourable Court the Claimant/Decree holder intends to issue instructions to auctioneers to attach the assets of the Applicant to its detriment.vii.That attempts to reach out to the Claimant/Decree Holder to agree on a mode of settlement of the awarded sum have borne no fruits.viii.That the Applicant is willing to liquidate the sum awarded to the Claimant by paying an initial lumpsum of Ksh.500,000/= and the balance in equal monthly instalments of Kshs. 50,000/=.ix.That the Applicant avers that at the moment he is unable to settle the decretal sum in a lump sum payout because of the tough economic circumstances facing the Applicant and the country at large.x.That the Applicant avers that Order 21 Rule 12(1) and 2 of the Civil Procedure Rules, 2010 grants the Honourable Court with unfettered discretion to order that the payment of the amount decreed shall be postponed or shall be made by installments, with or without interest, notwithstanding anything contained in a contract under which the money is payable.xi.That the Applicant avers that the court is further clothed with jurisdiction upon application of the judgment debtor and with the consent of the decree holder or without the consent of the decree holder for sufficient cause shown order that payment of the amount decreed be postponed or be made by instalments on such terms as to payment of interest, attachment of the property of the judgment debtor or taking of the security from him, or otherwise, as it thinks fit.”xii.That the Applicant has demonstrated sufficient cause as particularized as follows:a.There is an apparent error/mistake on the Ruling delivered on 6th March, 2025 as it included former employees who were not members of the Claimant Union.b.The Judgment Debtor/Applicant is unable to pay lump sum on account of his financial incapacity and other financial obligations with its bank.c.The Applicant is willing and desirous of making reasonable monthly instalments.d.The Application has been made in utmost good faith.xiii.That the Respondent/Applicant will suffer substantial loss and damage if the orders sought are not granted.xiv.That Applicant prays Honourable Court be pleased to issue an order of stay of execution of the Ruling of the Court delivered on 6th March, 2025 pending the hearing and determination of this application and further the Honourable Court be pleased to allow the Respondent/Applicant to liquidate the judgment sum of awarded to the Claimant herein, being arrears and terminal dues, by paying an initial lumpsum of Ksh.500,000/= and the balance in monthly instalments of Kenya Shillings Fifty Thousand (Kshs. 50,000/=) from the date of the order until payment in full.xv.That the Application has been brought without undue delay and ought to be granted.xvi.That it is in the interest of justice that the Application be granted. 4.The affidavit of JAGDEEP SINGH BHACHU sworn on even date reiterates the grounds on the face of the motion. 5.In reply to the Respondent’s application the Claimant filed a Replying Affidavit of Rose Omamo, the Secretary General of the Claimant union who deposes that all the employees referred to by the Respondent were in unionisable grades as provided in section 2 of the Labour Relations Act. 6.Ms. Omamo further deposed that Clause 27 of the parties registered CBA refers to “every unionisable employee in service” 7.Ms. Omamo further deposed that Chrispus Muli Wambua, Kisilu Muli, Erustus Maingi Masila, Andrew Wanjala Nyongesa, Jeremia Sila Muthama, Nicholas Musembi, Protus Kiugwa, Mutisya Muthoka, Chalo Mwasya and Wambua Musyimi were members of the Claimant union. The Claimant attached pay slips for the said employees indicating that the Respondent was deducting and remitting their union dues to the Claimant. The Respondent also attached membership cards for those employees who were not able to trace their pay slips. 8.Regarding the Respondent’s averment that it was not able to pay the decretal sum in lumpsum, Ms. Omamo deposes: -a.That, immediately the judgement was delivered, before we received a copy, the Respondent/Applicant Director Mr. Jagdeep Singh Bhachu gave us a call that this is a 2016 matter and there is no need of more issues and that he was willing and ready to pay. He went further and invited us to a joint meeting in his premise which was to be on 15th April,2025. We attended and discussed the pay Plan. Mr. Jagdeep stated that he can pay the decretal sum once. However, as much as he is ready and able to pay once, we should consider the security of the money and accept to pay twice in two equal monthly instalments. Mr. Jagdeep then assigned us to draft and share with him the draft pay consent.b.That, we drafted the consent and emailed it to him which he accepted as a good draft. The draft consent is herein attached as exhibit 3 on pages 18 and 19.c.That, within that time, we exchanged several email communications. All these are attached as exhibit 4 on pages 20 to 24 and they confirm the Respondent's ability to pay once.d.That, besides the emails, there were WhatsApp communications which we also attach as exhibit 5 on pages 25 to 28 and they confirm the Respondent's ability to pay the amount once.e.That, there were very sweet phone communications between the parties in which the Respondent/Applicant confirmed lump sum payment. In the first instance, he was to pay cash. In the secondly instance, he was to pay by cheque and thirdly, he was to pay by cash transfer to our bank Account. He requested us to share with him our bank details which we did. Confirm this at page 26. Little did the Claimant/Respondent know that the Respondent/Applicant was buying time for them to file and serve this Application. 9.The Respondent filed a supplementary affidavit of JAGDEEP SINGH BHACHU sworn on 9th June, 2025 in which he reiterates the averments in his affidavit sworn on 30th April, 2025. He requests that the ruling of 6th March 2025 be reviewed to strike out tabulations in respect of employees who were not members of the Claimant Union. He states that he has since retrieved some sample payrolls showing contributions to the union which clearly indicate the employees who were not members of the Claimant union. 10.Mr. Jagdeep deposes that the membership cards annexed to the Claimant’s Replying affidavit are not backed up by any financial records for payment/contributions. 11.In the second application filed by the Claimant dated 10th May, 2025, the Claimant seeks the following orders:a.That, the honourable Court be pleased to revisit her Ruling of 6th March, 2025 at paragraphs 7 and 8 and review them.b.That, the honourable Court get a chance to re-look at Clauses 15 and 22 of the parties CBA and Sections 35(6)(b) and 40(1)(g) of the Employment Act 2007 and Order accordingly.c.That, the honourable Court do consider adding employee names who were in the pleadings but missed out in the Ruling due to normal human error.d.That, this Application be consolidated with the Respondent/Applicant's Application dated 30th April, 2025 to be heard and determined jointly.e.That, the honourable Court be pleased to Order 12 months’ compensation to each of the grievant employees for unnecessarily detaining their decretal payments.f.That, the honourable Court be pleased to order cost of this matter to the Claimant/Applicant Union.g.That, the honourable Court be at liberty to issue any order that the honourable Court deems fit. 12.The application is supported by the grounds on the face of the application as follows:a.That, the Claimant Applicant Union considered that this matter is 9 years old having been filed in the year 2016 and therefore decided not to come back to Court and delay this matter any further.b.That, now, because the Respondent has come back to Court, the Applicant Union is keen to spend the same time to conclude the Applications as we pray that both applications are to be consolidated and determined once at the same time subject to the Court's discretion.c.That, in the honourable Court’s Ruling of 6th March, 2025 at paragraphs 7 and 8, the Court did not award the grievant employees payment for years of service stating that the parties had not agreed on that.d.That, it is not in dispute that the grievant employees served the Respondent employer. That, they invested a number of years in the service. That it is just and fair if the honourable Court could consider the years the grievant employees spent in service and order for payment of years of service to each employee as stipulated in either Clause 22 or 15 of the CBA or Sections 35(6)(b) and 40(g) of the Employment Act 2007.e.That, the said CBA having been signed by the parties and registered in Court is a statement that the parties agreed to pay years of service to any exiting employee.f.That, there is stipulated procedure to terminate or declare redundancy however, the manner in which the employees were kicked out of employment was so unprofessional and opaque that no one could categorically state that it was a termination or redundancy. The Respondent did not follow the stipulated procedures either in termination or redundancy. What is clear and undisputed is that the employees were in service and at one time after serving, they were kicked out of employment and the Court should consider payment for the years worked either as gratuity or severance. We pray that the employees should not be left out completely for the years of service.g.That, the second issue for review is the names of grievant employees who were in the pleadings but missed out in the Ruling. These are: Stephen Wambani Odera, and Kevin Wekesa Wafula who appeared on pages 41 and 57 respectively of the Claimant Submissions dated 5th May,2021.h.That, in the said submissions, Stephen Wambani Odera was allocated 152,692/= and Kevin Wafula Wekesa 98,663/=. That, we pray that they be considered and payment ordered accordingly.i.That, the third issue is that the Respondent employer to pay 12 months’ compensation on each total sum per employee. This claim is grounded on the fact that nothing stops the Respondent from paying the grievant employees their deserved benefit except the few he has mentioned in their Application. If an employer Respondent has an issue with some employee, then why is he detaining payment for other employees in which he has no issue? It is not right, lawful and justified to detain an employees pay without any reason. We pray for compensation.j.That, it is in the interest of justice that the Application be granted. 13.The application is further supported by the affidavit of ROSE OMAMO, the General Secretary of the Claimant Union in which she reiterates and expounds the grounds on the face of the applications. 14.The application is opposed by the Respondent vide a replying affidavit of JAGDEEP SINGH BHACHU sworn on 9th June, 2025 in which he deposes that the application is an afterthought and a reaction to the Respondent’s application dated 30th April, 2025, as admitted in the supporting affidavit of Rose Omamo. 15.Mr. Jagdeep further deposes that the Claimant’s application seeks payment of severance pay which was never agreed on. He further deposes that the demand for payment of 12 months compensation is not justified as the contracts of the employees were allowed to determine and terminal dues paid by the Respondent. Determination 16.The two applications were disposed of by way of written submissions. Both parties filed and exchanged submissions, in which they reiterated the averments and grounds on the face of the applications and affidavits in support thereof. 17.I will first consider the Respondent’s application dated 30th April, 2025. 18.The issue for determination in the Respondent’s application dated 30th April, 2025 is whether the Respondent’s application meets the requirements for review and if the orders sought in the application are merited. 19.The powers of this court to review its judgements and orders is provided for in section 16 of the Employment and Labour Relations Court Act as follows: 16.Review of orders of the CourtThe Court shall have power to review its judgements, awards, orders or decrees in accordance with the Rules. 20.The extent of such review is further provided for in rule 74 of the Employment and Labour Relations Court (Procedure) Rules 2024 as follows: 74.(1)A person who is aggrieved by a decree or an order from which an appeal is allowed but from which no appeal is preferred or from which no appeal is allowed, may within reasonable time, apply for a review of the judgment or ruling—(a)if there is discovery of a new and important matter or evidence which, despite 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;(b)on account of some mistake or error apparent on the face of the record;(c)if the judgment or ruling requires clarification; or(d)for any other sufficient reason.(2)An application for review of a decree or order of the Court under sub-rule (1) shall be made to the judge who passed the decree or made the order sought to be reviewed or to any other judge if that judge is not attached to the Court station. 21.In the instant case the ruling sought to be reviewed is dated 6th March, 2025. The order sought to be reviewed is the inclusion of employees whom according to the Respondent were not members of the Claimant union. The Respondent further seeks leave of the court to pay the decretal sum by installments. It proposes to pay Kshs. 500,000 as initial payment followed by installments of 50,000 per month until payment in full. 22.On the first prayer the Respondent submits that there was an error on the face of the record as some employees were not union members. 23.The Claimant on the other hand has submitted pay slips and union membership cards indicating that the said employees were members. 24.What constitutes an error on the face of the record has been defined by the courts in several decisions. In the case of Muyodi vs. Industrial and Commercial Development Corporation & Another [2006] EA 243 the Court of Appeal described an error apparent on the face of the record as follows:“In Nyamogo & Nyamogo vs. Kogo [2001] EA 174, this court said that an error apparent on the face of the record cannot be defined precisely or exhaustively there being an element of indefiniteness inherent in its very nature, and it must be left to be determined judicially on the facts of each case. There is real distinction between a mere erroneous decision and an error apparent on the face of the record. Where an error on a substantial point of law stares one in the face, and there could be reasonably be no two opinions, a clear case of error apparent on the face of the record would be made out. An error which has to be established by long drawn process or reasoning or on points where there may conceivably be two opinions, can hardly be said to be an error apparent on the face of the record. Again, if a view adopted by the court in the original record is a possible one, it cannot be an error or wrong view is certainly no ground for a review although it may be for an appeal. This laid down principle of law is indeed applicable in the matter before us.” 25.In the case of Republic v Advocates Disciplinary Tribunal Ex parte Apollo Mboya [2019] eKLR, the court borrowed from the following reasoning in the case of Levi Outa v Uganda Transport Company, 1999 HCB 340:“mistake or error apparent on the face of record” refers to an evident error which does not require extraneous matter to show its incorrectness. It is an error so manifest and clear that no court would permit such an error to remain on the record. It may be an error of law, but law must be definite and capable of ascertainment.” 26.The court has noted that this issue has never been raised with the court before. The list of names as contained in the Ruling dated 6th March 2025 were in the Claimant’s tabulation yet there is no evidence that the Respondent ever raised any objection before the instant application. 27.The issue of who was or was not a member of the union was never raised by the Respondent earlier or at any time during the pendency of this suit. The Respondent has raised the matter for the first time in the instant application. 28.Going by the definitions of “error on the face of the record” in the cases referred to above, there can never be an error on the face of the record on matters not within the knowledge of or before the court for determination. 29.Further, it is evident from the replying affidavit of Rose Omamo that the parties discussed the issue of payment of decretal sum and at no time did the Respondent raise the issue that some grievants were not members of the Claimant union. 30.I thus find that there is no error on the face of the record in the ruling of this court dated 6th March, 2025. 31.On the second prayer raised in the Respondent’s application it seeks to pay the decretal sum in instalments. Order 21 rule 12 of the Civil Procedure Rules which has been invoked by the Respondent in its application provides that: -“(1)Where and in so far as a decree is for the payment of money, the court may for any sufficient reason at the time of passing the decree order that payment of the amount decreed shall be postponed or shall be made by installments with or without interest notwithstanding anything contained in the contract under which the money is payable.(2)After passing of any such decree, the court may on the application of the judgment debtor and with the consent of the decree-holder or without the consent of the decree holder for sufficient cause shown, order that the payment of the amount decreed be postponed or be made by installments on such terms as to the payment of interest, the attachment of the property of the judgment debtor or the taking of security from him, or otherwise, as it thinks fit.” 32.The Respondent in its application states that:i.The Judgment Debtor/Applicant is unable to pay lump sum on account of his financial incapacity and other financial obligations with its bank.ii.The Applicant is willing and desirous of making reasonable monthly instalments.iii.The Application has been made in utmost good faith. 33.The averments of Rose Omamo in her replying affidavit paint a different picture from what the Respondent would have the court believe. In her uncontroverted averments in the affidavit she states that the Respondents Mr. Jagdeep promised to pay the decretal sum in one or two installments. She has attached excerpts of communication between the parties on WhatsApp and email conversations where the Respondent agreed to pay and promised payments by certain dates then failed to honour the promises. Specifically, by email communication of 28th April, 2025, the Respondent’s Mr. Jagdeep agreed to payment by two instalments, the first on 1st May, 2025 and the second on 1st June, 2025.The email reads:Good morning. Sorry for the late reply.I have seen your document. Please amend to one instalment by the 1st of May and the second one 1st of June.Meanwhile I am arranging the money to the best of my ability.Yours faithfully,Jagdeep Singh Bhachu. 34.From the forgoing I do not find the application to pay an initial instalment of Kshs. 500,000 followed by Kshs. 50,000 every month until payment in full to be in good faith. In fact, I think it is made in outright bad faith, going by the communications between the parties before the application was filed. 35.For these reasons I find no merit in the application dated 30th April, 2025. The Respondent does not merit the discretion of the court in its favour. The application is accordingly dismissed. 36.On the second application made by the Claimant dated 10th May, 2025, the issues that arise for determination are whether the court should review the ruling dated 6th March, 2025 by adding the names of employees whose names were in the pleadings but were left out inadvertently in the tabulation of the dues payable to the grievants; whether the court should order the Respondent to pay 12 months compensation to the Grievants for delaying payment of the decretal sum to them and whether the court should order payment of costs to the Claimant. 37.I have reviewed the documents on record as filed by the parties. From the submissions by the parties on tabulation of payments due to the Grievants, I note that in the Respondent’s List of Documents dated 14th October, 2022, the name of Stephen Wambani Odera appears at No. 11 while that of Kevin Wekesa Wafula is at No. 24. The same names appear in the Claimant’s Tabulation dated 22nd July, 2020 as No. 11 and No. 28 respectively. 38.From the foregoing I am satisfied that the two names were inadvertently omitted in the ruling of the court dated 6th March, 2026. 39.With respect to the award of 12 months compensation to the Grievants the Claimant states that the same should be awarded because the Respondent unnecessarily detained their decretal payments. There is no legal basis for such payments. Decretal sums remaining unpaid can only be subjected to interest at court rates. 40.In the instant case, the court orders that the Respondent shall pay interest on the decretal sum from the date of ruling being 6th March, 2025. 41.In the end the court makes the following orders:a.The application dated 30th April, 2025 is dismissed with costs;b.The application dated 10th May, 2025 is allowed in the following terms:i.The court reviews the order of this court dated 6th March, 2025 by adding the tabulation in respect of Stephen Wambani Odera and Kevin Wekesa Wafula which were inadvertently omitted, as follows:Stephen Wambani OderaOne months’ notice Kshs. 18,133Salary increment 2018 Kshs. 19,788House Allowance Kshs. 32,978Leave travelling allowance Kshs. 2000Total Kshs. 72,889Kevin Wekesa WafulaOne months’ notice of termination Kshs. 20,919Salary increment Kshs. 8,636House allowance Kshs. 12,905Leave travelling allowance Kshs. 2000Total Kshs. 44,460 42.The Respondent shall pay the Claimant’s costs for both applications assessed at Kshs. 50,000 43.Interest shall accrue on the decretal sum at court rates from 6th March, 2025. 44.Interest on costs shall accrue from date of this ruling. DATED, SIGNED AND DELIVERED VIRTUALLY ON THIS 14TH DAY OF MAY 2026MAUREEN ONYANGOJUDGE