https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2122

 **REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT** **NAIROBI** (ON Makau J on 23rd July 2026) **CAUSE NO. E142 OF 2022** **CHRISTINE NZILANI JOSEPH…………………………….CLAIMANT** **-VERSUS-** **GOLDEN YEARS LIMITED……….….…………………RESPONDENT** **RULING** **Introduction** 1. On the 19th of November 2025 Marete J delivered judgment in favour of the claimant declaring that she was constructively dismissed by the respondent and awarded her a total of Kshs.392,938.46. The respondent was aggrieved and filed a Notice of Motion dated 15th January 2026 seeking the following orders - 2. ***That, pending the hearing and determination of this Application, there be a stay of execution of the Judgment of this Court delivered on the 19th of November 2025;*** 3. ***That this Honourable Court be pleased to review and set aside the Judgment and all consequential Orders issued on 19th November 2025 in this matter in its entirety;*** 4. ***That this Honourable Court be pleased to dismiss the Memorandum of Claim dated 11th February 2022;*** 5. ***That the costs of this Application be in the cause.*** 6. The Motion is supported by an Affidavit sworn on 15th January 2026 by Ms. Purity Wangari Migwi, a Director/Authorized Officer of the Respondent/Applicant. It is opposed by the Claimant vide her Replying Affidavit sworn on 3rd February 2026. Subsequently, the motion was disposed of by written submissions. **Facts** 1. On 11th February 2022, the Claimant instituted this suit vide a Memorandum of Claim against the respondent, Golden Years Limited. Summons to enter appearance were subsequently issued against Golden Years Limited on 5th August 2022. 2. The Applicant entered appearance, filed a Memorandum of Response and fully participated in the proceedings through counsel. In its Memorandum of Response, the Applicant admitted its description and the existence of an employment relationship with the Claimant and never raised any objection as to jurisdiction, capacity, or its legal existence. 3. After hearing the parties, the court delivered Judgment on 19th November 2025 in favour of the Claimant, awarding compensation against the Respondent/Applicant. 4. The Applicant now contends that the suit was instituted against Golden Years Limited at a time when the said entity did not exist in law, as it had not yet been incorporated. The Applicant asserts that Golden Years Limited was only incorporated on 14th December 2023, nearly two years after the suit had already been filed and Summons issued. 5. It averred that a non-existent entity cannot be sued or subjected to any judicial proceedings since legal proceedings initiated against it before incorporation would be null and void. It further averred that the impugned judgment and all the consequential orders are therefore fundamentally defective and unenforceable, and constitutes and error apparent on the face of the record. 6. The Applicant further contends that this Honourable Court lacked jurisdiction to entertain the claim as framed, since the Claimant’s monthly salary was less than Kshs. 80,000.00, which falls outside the statutory jurisdiction of this Court. 7. The Applicant averred that there is a fundamental error of law and jurisdiction apparent on the face of the record that renders the impugned judgment amenable to review under order 45 of the Civil Procedure Rules. It averred that unless the orders sought are granted, it will suffer grave injustice, financial prejudice and irreparable harm arising from an unlawful decree. 8. In its written submissions, the counsel has alleged from the bar that the Claimant has threatened to execute the Judgment against Golden Years Supplies Limited, a completely different company incorporated on 14th December 2023, more than a year after the original claim was lodged. 9. The Claimant, on the other hand, contends that the Application is fundamentally defective for being brought under Order 45 of the Civil Procedure Rules, 2010 which is inapplicable to proceedings before this Court except where expressly adopted. 10. The Claimant further contends that the Applicant fully participated in the proceedings and did not challenge the jurisdiction of this Court prior to the judgment. The Claimant also states that the Applicant was well represented throughout the suit by an Advocate and at no point did they raise any objection on misjoinder of parties. In their Response to Claim, they admitted the employment relationship and they are therefore estopped from reintroducing a new issue of the date of their incorporation. 11. The Claimant further states that her Equity Bank statement bears record that the Applicant paid her salary in the year 2019 and at paragraph 3 of their Memorandum of Response, they admitted she was in their employment. 12. The Claimant also averred that the Applicant was aware of the certificate of incorporation before the entry of the impugned judgment but concealed it from the court and therefore it is neither a new and important item of evidence or an error apparent on the face of the record warranting review of the judgment. She prayed for the motion to be dismissed with costs for lack of merits and also because the Applicant has failed to comply with the order of this court directing it to deposit the decretal sum in court as a condition for stay of execution. 13. Having considered the instant Motion, the Replying Affidavit, the submissions and the impugned Judgment, the main issues for determination are:- 14. Whether the Applicant has met the legal threshold for review of impugned judgment; 15. Whether the orders sought by applicant should be granted. **Analysis** **The legal threshold for review of a judgment by this court.** 1. The Applicant has moved this court under the provisions of Order 45 Rule 1 of the Civil Procedure Rules, 2010 but the applicable law is Rule 74(1) of the ELRC Procedure Rules of 2024 which provides that:- ***“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 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;*** ***(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.”** 1. In the instant matter, the Applicant seeks review on the ground there is an error apparent on the face of the record that goes to the root of the Judgment, namely, that the proceedings were conducted against a non-existent entity and that the Court acted without jurisdiction. 2. I have considered the arguments of both parties on this issue and sought guidance from judicial precedents. In **National Bank of Kenya Limited v. Ndungu Njau [1997] eKLR**, as cited by both parties, the Court of Appeal held that:- ***“A review may be granted whenever the court considers that it is necessary to correct an error or omission on the part of the court. The error or omission must be self-evident and should not require an elaborate argument to be established. It will not be sufficient ground for review that another judge could have taken a different view of the matter. Nor can it be a ground for review that the court proceeded on an incorrect exposition of the law and reached an erroneous conclusion of the law. Misconstruing a statute or other provision of the law cannot be a ground for review.”*** 1. Further, in **Nyamogo & Nyamogo Advocates v. Kogo [2001] EA 173**, as cited by the Claimant/Respondent, the Court held 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 determined judicially on the facts of each case. There is a 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 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 a long-drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record.”*** 1. I have perused the Memorandum of Claim dated 11th February 2022, the Summons to enter appearance issued on 5th August 2022 and the Memorandum of Response filed by the Respondent/Applicant. It is clear from the record that the Respondent/Applicant fully participated in the proceedings and at no point raised any objection as to its legal existence or capacity. The issue it now raises, namely its alleged non-existence, was a matter that was within its knowledge during the proceedings but it concealed it from the court. 2. Accordingly, no error apparent on the face of the record has been identified as the court conducted the proceedings and made its judgement based on the pleadings, evidence and submissions presented by the parties. At no time was the issue of jurisdiction and legal capacity of the respondent challenged and the court invited to make a determination. The applicant voluntarily subjected itself to the jurisdiction of the court and therefore it cannot turn round after judgment to challenge the court’s jurisdiction. 3. In **Independent Electoral and Boundaries Commission & Another v. Stephen Mutinda Mule & 3 Others [2014] eKLR**, cited by the Claimant, the Court of Appeal affirmed that each party in the adversarial system is bound by his own pleadings and cannot be allowed to raise a different or fresh case without due amendment properly made. Each party thus knows the case he has to meet and cannot be taken by surprise at the trial. The court is also bound by the pleadings of the parties and it cannot be allowed to travel beyond the issues raised in the pleadings. 4. As such the matters now being raised by the applicant after the judgment were not pleaded or even raised in evidence during the trial. Therefore, the court cannot be faulted for not rendering itself on matters that were deliberately concealed from it by none other than the applicant itself. 5. By introducing the said new matters, the applicant seems to be asking the court to reopen the trial to enable it improve its case using the evidence it had all through concealed from the court. 6. Further, the jurisdiction of this court in employment disputes is both original and unlimited by dint of Section 12 of the Employment and Labour Relations Court Act and Article 162(2) (a) of the Constitution, and there is no law that bars it from entertaining any suit just because the salary of the employee is below Kshs. 80,000. As long as the respondent does not raise the issue of pecuniary jurisdiction, the court can lawfully entertain the suit where the salary is below Kshs. 80,000. 7. The foregoing position obtained in **Amos Kung'u Wabaru v. Royal Mabati Factory Limited & Heritage, ELRC case no. E491 of 2024 (2025)**, where I ordered transfer of the suit to the lower court after the respondent raised a preliminary objection that the Claimant was earning a salary less than Kshs. 80,000.00 per month. 8. In view of the foregoing, I find that the Applicant has not proved that there exists an error apparent on the face of record and therefore his motion has not met the threshold for review under Rule 74(1) of the Employment and Labour Relations Court (Procedure) Rules, 2024 and as enunciated by the Court of Appeal in **the National Bank of Kenya** **case**, *supra*. 9. In any event, I have noted from the Certificate of Incorporation annexed to the Supporting Affidavit of Purity Wangari Migwi sworn on 15th January 2026 and marked as PwM-3, that the company incorporated was Golden Years Supplies Limited and not Golden Years Limited. The Applicant has not produced any cogent evidence such as official records from the Registrar of Companies to prove that Golden Years Limited, did not exist at the time the suit was filed. Bare allegations cannot suffice to impeach a judgment that is grounded on matters pleaded by the parties to the suit and supported by evidence. 10. It follows that, the certificate of incorporation of the said Golden Years Supplies Limited issued on 14th December 2023, is irrelevant to this case as it does not refer to the applicant, against whom a judgment has been entered. As things stand now, the said Golden Years Supplies Limited and Golden Years Limited are two different legal persons until proved otherwise. **Orders sought** 1. Having concluded that the applicant has failed to prove that there is an error apparent on the face of the record as alleged, I hold that the court has no basis for exercising its discretion to review the impugned judgment. Consequently, the applicant’s Notice of Motion dated 15th January 2026 lacks merits and it is dismissed with costs to the Claimant. **DATED, SIGNED AND DELIVERED VIRTUALLY IN OPEN COURT AT NAIROBI THIS 23RD DAY OF JULY, 2026.** **ONESMUS MAKAU** **JUDGE** **Appearance:** Kegere for Mwangi for Applicant Kyule for Ayieko for Respondent