https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2402

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT** **AT NAIROBI** **ELRC CAUSE NO. 14 OF 2020** **SUNIL KANDIYAL……….……..………..……CLAIMANT/APPLICANT** **-VERSUS-** **SAMEER AGRICULTURE & LIVESTOCK (K) LIMITED………………………………………………………RESPONDENT** *(Before Hon. Justice Abuodha Jorum Nelson)* **RULING** 1. The application before me is a Notice of Motion dated 1st October, 2025 brought under ***Section 16 of the Employment and Labour Relations Court Act,2011 and Rule 74 of the Employment and Labour Relations Court (Procedure) Rules 2024***. The application seeks orders inter alia: 1. *That this Honourable Court be pleased to review its judgment delivered on 27th September 2025, to correct errors apparent on the face of the record.* 2. *That upon review, the Court be pleased to award the Claimant pay in lieu of accrued leave days for the 18 months worked without leave, in the sum of USD 5,625 in accordance with Section 28 of the Employment Act, 2007.* 3. *That upon review, the Court be pleased to compute the Claimant’s compensation and all monetary awards based on his gross monthly salary of USD 3,650, as pleaded in the Memorandum of Claim, rather than USD 2,750 which was the net pay.* 2. The Claimant/Applicant’s application is premised on grounds that: 1. This Court in its judgement computed compensation for unfair termination using the Claimant's net salary, the sum of USD 2,750 instead of his pleaded gross salary of USD 3,650. 2. That the Court omitted to make a finding or an award in its final determination on the Claimant's claim for payment in lieu of eighteen (18) months' accrued leave, which issue had been pleaded and submitted upon, and which was not disputed by the Respondent. 3. That the omission amounts to an error apparent on the face of the record, warranting review under Rule 74 of the Employment and Labour Relations Court (Procedure) Rules, 2024. 3. The application was supported by the Affidavit of **Sunil Kandiyal**, the Claimant herein in which he reiterates the averments on the face of the motion. 4. In response, the Respondent filed a Replying Affidavit dated 18th February 2026 sworn by one **Paul Maina**, stating that; 1. the Claimant/Applicant’s Application is misconceived and seeks to reopen and re-litigate issues already determined by this Honourable Court in its Judgment delivered on 27th September 2025. 2. That the allegation that the Court committed an error is unfounded as the Applicant's Appointment Letter dated 17th July 2017 expressly provided that his net emoluments were USD 2,750 per month. 3. That the issue of salary was a contested evidentiary issue fully ventilated before the Court and any dissatisfaction with the Court's determination cannot form the basis of a review. 4. That the Applicant's claim for accrued leave was neither admitted nor strictly proved and the present Application improperly invites this Honourable Court to reassess evidence and recompute awards, which falls outside the limited scope of review. 5. That upon separation from employment, the Applicant executed an Acknowledgement and Release confirming receipt of payment in full and final settlement of all claims arising from his employment and termination and waiving any further claims. 6. That the Application amounts to an appeal disguised as a review. 5. The Application was disposed of by written submissions. **APPLICANT’S SUBMISSIONS** 6. The Applicant through its Advocates E.A. Ochieng & Company Advocates filed its written submissions dated 19th March, 2026 and on the issue of whether the application meets the threshold for review, the Applicant submitted that Rule 74 of the Employment and Labour Relations Court (Procedure) Rules, 2024 empowers this Court to review its decisions on the grounds of an error apparent on the face of the record, discovery of new and important matter or evidence, or for any other sufficient reason. 7. He argued that the present application sought to correct a computational error and an omission to determine a pleaded statutory claim rather than re-open the merits of this court’s judgment. He relied on **National Bank of Kenya Ltd v Ndungu Njau**, **Nyamogo & Nyamogo Advocates v Kogo** and **Pancras T. Swai v Kenya Breweries Ltd**, where the courts held that review lies to correct an obvious error or omission but is not a substitute for an appeal. 8. On the issue of the sum of the salary adopted by the Court in computing the award, the Applicant submitted that he had consistently pleaded that his gross monthly salary was USD 3,650 while the sum of USD 2,750 represented his net salary. He argued that the Respondent's own Full and Final Settlement showed that the terminal dues were computed using the gross salary of USD 3,650, which supported his position that the Court ought to have adopted the gross salary in computing the award. It was his belief that the court, in using the net salary resulted in an erroneous computation of compensation, notice pay and all other awards pegged on the monthly wage under Section 49 of the Employment Act. He relied on the case of **Nyamogo & Nyamogo Advocates v Kogo**. 9. On the issue of the claim for accrued leave, the Applicant submitted that he had pleaded that he worked for eighteen (18) months without proceeding on annual leave and was entitled to payment in lieu thereof under Section 28 of the Employment Act. Counsel argued that although the Respondent asserts that the claim for leave had neither been admitted nor proved, leave records are by law kept by the employer under Section 74 of the Employment Act. He further submitted that although the Court referred to the claim for leave in its analysis, it failed to make a finding or include an award in the final orders. That he was not asking the Court to re-evaluate the evidence but to determine a pleaded claim that had inadvertently been omitted. He relied on the case of **National Bank of Kenya Ltd v Ndungu Njau** in support of that position. 10. On the issue of the Acknowledgement and Release, the Applicant submitted that a discharge voucher does not deprive this Court of its jurisdiction to review its decision under Rule 74 and cannot defeat statutory entitlements. He relied on **Coastal Bottlers Ltd v Kimathi Mithika** and **Trinity Prime Investment Ltd v Lion of Kenya Insurance Co. Ltd**, where the Court of Appeal discussed the effect of discharge vouchers in employment disputes. 11. He prayed that the application be allowed with costs. **RESPONDENT’S SUBMISSIONS** 1. The Respondent through its Advocates Eliud Maina Karanja Advocates filed its written submissions dated 5th June, 2026 and on the issue of the salary sum adopted by the Court in computing the award, the Respondent submitted that the Court did not commit any error in using the sum of USD 2,750 as the Applicant's monthly salary since the Appointment Letter dated 17th July 2017 expressly provided that the Applicant's net emoluments were USD 2,750 per month. Counsel argued that the applicable salary was a contested issue that was fully ventilated during the hearing and determined by this Court. 2. The Respondent further submitted that the Applicant's reliance on the Full and Final Settlement to infer a gross salary of USD 3,650 was misplaced since the amount of USD 7,470.24 comprised salary arrears and other payments rather than one month's salary and notice pay. It was therefore their belief that the application sought to challenge the Court's findings on the evidence and amounted to an appeal disguised as a review. In support of this submission, it relied on **Zablon Mokua v Solomon M. Choti & 3 Others [2016] eKLR**. 3. On the issue of the claim for accrued leave, the Respondent submitted that the Claimant/Applicant’s claim had neither been particularised nor proved. The Respondent argued that its Statement of Defence dated 20th April 2022 specifically denied liability for this claim and pleaded that the Applicant had failed to particularise the period for which leave was claimed or the amount due. 4. The Respondent further submitted that the Applicant did not produce any leave records, leave schedule or other documentary evidence in support of the claim. According to the Respondent, whether the Applicant had proved his entitlement to leave was a matter of evaluation of evidence and could not constitute an error apparent on the face of the record. It was their belief that the burden of proving the leave claim rested with the Applicant and the Court's failure to make an award on an unproved claim could not be reviewed. 5. On the issue of the Acknowledgement and Release, the Respondent submitted that upon separation, the Applicant executed a discharge acknowledging receipt of USD 7,470.24 in full and final settlement of all claims arising out of his employment and termination. The Respondent argued that any claim for accrued leave had crystallised by the time the discharge was executed and was lawfully compromised by the parties. Therefore, the Release was valid and binding and barred the Applicant from reviving the leave claim through the present application. **DETERMINATION** 1. I have considered the Application filed by the Applicant, the Replying Affidavit and the submissions therein and the issue that arises for determination is whether the Application meets the legal threshold for review of a judgment by the trial court. 2. **Section 16 of the Labour Relations Act, 2011** is the guiding law on review of the Employment and Labour Relations court Judgments. It provides as follows; *The Court shall have power to review its judgements, awards, orders or decrees in accordance with the Rules.* 1. Further Rule 33 of the **Employment and Labour Relations Court (Procedure) Rules, 2016** provides for review as follows:- | | | | | | | | | | | | | | | | | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | | *(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 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. Concerning the grounds for review, the Applicant has relied on mistake or error on face of record. The thrust of the application was that the Applicant made a case for compensation for accrued leave days but the same was not considered by this Court and that the salary sum adopted by the Court in computing the award was erroneous. In **Zablon Mokua v Solomon M. Choti & 3 others [2016] eKLR** while relying on court of Appeal decisions, the court held that: - The Court of Appeal had the following to say in an application for review in the case of **National Bank of Kenya Ltd vs Ndungu Njau.** “*A review may be granted whenever the court considers that it is necessary to correct an apparent 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 a 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 law. Misconstruing a statute or other provision of law cannot be a ground for review.”* 1. On the issue of the sum of salary adopted by the Court in computing the award, I am not persuaded that the Applicant has demonstrated an error apparent on the face of the record. The Appointment Letter dated 17th July 2017, which formed part of the record before the Court, expressly provided that the Applicant's monthly emoluments were USD 2,750. The Court adopted that figure in computing the award. The Applicant did not place before the Court any evidence showing that the contractual salary had changed to USD 3,650. 2. On the issue of accrued leave, I have perused the impugned judgment and confirmed that the court did not make a determination on the claim even though the same was pleaded and was an issue before the court. The failure by the court to determine the said claim in the judgment is a mistake or error apparent on the face of the record. Leave is a statutory right and is determinable by length of service which has been pleaded and is earned without more unless there is proof to the contrary. Therefore, I find merit in this respect that the court should review the judgment on this claim. In this regard the court is guided by the reasoning of the Court in ***Ndungu v Segera Limited (Cause E008 of 2022) [2024] KEELRC 66 (KLR) (26 January 2024) (Ruling*)** where it was held that; *“The error or omission in the impugned judgment is obvious. It stares you on the face. It announces itself clearly. You do not need a lot of effort to see it. Consequently, I must hold that save for the late filing, of the application meets the legal threshold for review and I will proceed to determine the claim for overtime and rest days worked.”* Similarly in the case of [***National Bank of Kenya v Ndungu Njau***](https://kenyalaw.org/akn/ke/judgment/keca/1997/71) [1997] eKLR the court expressed itself as follows concerning an error or omission apparent on the face of record: *“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. The Court notes that the parties took opposing positions on the Applicant's claim for accrued leave. Whilst the Applicant contends that he was not granted an opportunity to utilize his leave days for the entire period that he worked for the Respondent, the Respondent disputes this fact. According to the Respondent, the Applicant had not tabled evidence to demonstrate that he was not allowed to utilize his leave days. 2. Under **Section 28 of the Employment Act,** an employee is entitled to annual leave, to wit:- 3. *An employee shall be entitled—* * + - 1. *after every twelve consecutive months of service with his employer to not less than twenty one working days of leave with full pay;* 2. *where employment is terminated after the completion of two or more consecutive months of service during any twelve months' leave-earning period, to not less than one and three-quarter days of leave with full pay, in respect of each completed month of service in that period, to be taken consecutively.’* 4. Furthermore, under **Sections 10 (7) of the Employment Act** as read with **Sections 112 of the Evidence Act** and **Section 74 of the Employment Act**, the burden lay with the Respondent to prove that the Claimant utilized his leave days. The Respondent was obligated to keep records on this entitlement and present them to court. However, as the court record demonstrates, the Respondent did not produce the Applicant’s leave records or any other evidence showing that the Applicant had proceeded on annual leave during his employment, to court. I am guided by the Court of Appeal in the case of ***Jackson Muiruri Wathigo t/a Murtown Supermarket v Lilian Mutune [2021] KECA 388 (KLR)*** where in determining a similar case, held that the responsibility of keeping records on the matters under inquiry lay with the employer and that in the event of a dispute on the said matters, the burden lay with the employer to present evidence on them. This being the case, the court must find that the Applicant was deprived of his leave entitlement for the duration under consideration. 5. From the foregoing, the court will partially allow the application for review with the result that the judgement delivered on 1st October, 2025 is altered to read that the Claimant is entitled to the following: - **a**. **Unpaid leave allowance for the leave days worked,** **calculated in accordance with Clause 10 of the employment contract………30/30 × USD 2,750 × 18/12 =** **USD 4,125.00**. 1. **Any subsequent decree arising therefrom shall accordingly reflect that alteration.** 2. **It is so ordered.** **Dated at Nairobi this 12th day of August 2026** **Delivered virtually this 12th day of August 2026** **Abuodha Nelson Jorum** **Presiding Judge-Appeals Division**