https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1479

Kenya Shipping Clearing & Warehouses Workers Union v Maya Freight Limited (Employment and Labour Relations Cause 898 of 2018) [2026] KEELRC 1479 (KLR) (28 May 2026) (Ruling) Neutral citation: [2026] KEELRC 1479 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Employment and Labour Relations Cause 898 of 2018 HS Wasilwa, J May 28, 2026 Between Kenya Shipping Clearing & Warehouses Workers Union Claimant and Maya Freight Limited Respondent Ruling 1.The Respondent/Applicant filed a Notice of Motion application dated 27th January 2026, seeking orders that:1.The application be certified urgent and heard ex-parte in the first instance.2.Pending the hearing and determination of the application, an Order be and is hereby issued staying the execution of the Ruling delivered on 21st October 2025 and any resultant order.3.The Honourable Court be pleased to review, vary and set aside the Ruling dated 21st October 2025 with respect to paragraph 23 which awarding to the Claimant Kshs. 22,350/= as salary for 25 days worked up to 25th May 2018.4.Costs of this application be awarded to the Applicant. Respondent/Applicant’s Case 2.The Applicant avers that on 21st October 2025, the Court delivered its Ruling awarding the Claimant Kshs. 22,350 being salary for 25 days worked up to 25th May 2018. The Applicant refers to paragraph 23 of the Ruling wherein the Court stated that there was nothing exhibited to show what was owing to the Claimant save for the one payment of salary for 25 days worked up to 25th May 2018 and consequently awarded Kshs. 22,350 as prayed. 3.The Applicant avers that the issue of salary for days worked in May 2018 was not in dispute before the Court as parties had already agreed and confirmed that the Grievant had been paid his salary for days worked in May 2018. It states that this agreement was reached during out of court settlement negotiations undertaken pursuant to the Court’s directions. 4.The Applicant further states that following the mention on 30th April 2025, the parties met on 8th May 2025 at the Applicant’s premises and upon deliberations, the Union withdrew the demand for Kshs. 22,350 being salary for days worked in May 2018 after the Grievant admitted having been paid. 5.It is the Applicant’s contention that the Union confirmed the said position through its letter dated 15th May 2025 addressed to the Applicant’s advocates wherein it acknowledged that the Grievant admitted receipt of his May 2018 salary. 6.The Applicant further avers that when the matter came up for mention on 19th June 2025, parties informed the Court that they had negotiated and the only outstanding issue was leave days. Consequently, the Court directed parties to file a two-page affidavit on leave days to enable the Court determine the issue. The Applicant relied on paragraph 5 of the impugned Ruling wherein the Court captured that parties had agreed on all issues save for leave days earned and directed filing of a two-page affidavit on the same. 7.The Applicant states that in its affidavit sworn on 20th March 2025 accounting for payment of terminal dues, it confirmed that the Grievant was paid final dues on 29th May 2018 amounting to Kshs. 24,010.37 being net salary for May 2018 and attached evidence of payment. 8.The Applicant asserts that there is need for review and setting aside of that part of the Ruling awarding the Claimant Kshs. 22,350 as salary for May 2018 on grounds that the same constitutes an error apparent on the face of the record and was not an issue for determination before the Court. 9.The Applicant further contends that this Court has jurisdiction under Rule 75 of the Employment and Labour Relations Court (Procedure) Rules to review and set aside the Ruling on account of mistake or error apparent on the face of the record. 10.It is the Applicant’s case that the application was filed without undue delay; and that payment of the said amount to the Grievant would amount to unjust enrichment. 11.The Applicant further states that its advocates wrote to the Grievant’s Union in November 2025 seeking to record a consent setting aside the award of Kshs. 22,350 but the Union insisted on payment of the amount despite acknowledging that the Grievant’s May 2018 salary had already been paid. 12.The Applicant therefore urges the Court, in the interests of justice, to review the said Ruling and set aside the award of salary for May 2018. Claimant/Respondent’s Case 13.In opposition to the application, the Claimant/Respondent filed a replying affidavit dated 26th February 2026, sworn by its General Secretary, James O. Tongi. 14.The Respondent avers that the instant application was served upon it on 24th February 2026, being 27 days after filing, which delay it contends is indicative of bad faith on the part of the Applicant. 15.The Respondent states that on 8th May 2025, parties met to peruse the Grievant’s employment records and it was confirmed that the Grievant’s file did not contain leave records for the years 2002 to 2003 save for a single day leave request. This confirmed that the Applicant, being the custodian of employment records, failed to produce evidence showing that the Grievant took leave during the said period. 16.The Respondent admits that parties engaged in discussions aimed at settling the dispute in the spirit of give and take during the said meeting. However, it contends that such settlement negotiations cannot form the basis for review or setting aside of the Ruling delivered on 21st October 2025 nor can they be relied upon to establish an error apparent on the face of the record as no such error exists. 17.It is the Respondent’s contention that the matter has already experienced considerable delay and that the Applicant is now seeking to reopen the case under the guise of review instead of embracing the amicable resolution mechanisms that had already been extended to it. The Respondent avers that the Application is intended to frustrate the conclusion of the matter. 18.The Respondent further states that it is aggrieved by both the Judgment delivered on 31st October 2024 and the Ruling delivered on 21st October 2025, both of which it states favoured the Respondent/Applicant despite failure by the Applicant to produce complete leave records for the Grievant for the years 2002 to 2003. 19.The Respondent asserts that the Applicant never explained in its pleadings why the Grievant’s leave records for the years 2002 to 2003 were missing from the employment file. This omission is significant and raises questions regarding the completeness and integrity of the records relied upon by the Applicant. 20.The Respondent further avers that despite successfully opposing the Claimant’s previous affidavit on grounds that it introduced unpleaded claims, the Applicant now seeks to reopen the matter. 21.It states that the Claimant, acting in good faith, persuaded the Grievant to accept the Ruling of 21st October 2025 in the spirit of closure and contends that the Applicant ought to appreciate that concession instead of returning to Court to reopen the dispute. 22.The Respondent states that the Judgment delivered on 31st October 2024 properly considered the applicable Collective Bargaining Agreement and correctly applied it in computing the Grievant’s final dues. Therefore, there is no error apparent on the face of the record to warrant review. 23.The Respondent further states that through its letter dated 17th November 2025, it communicated dissatisfaction with the impugned Ruling but nonetheless accepted it in the spirit of give and take. It contends that should the Applicant insist on prosecuting the instant application, then it reserves the right to revert to its original claims as contained in the pleadings. 24.It is the Respondent’s case that in the interest of fairness and justice, should the Court be inclined to allow the Applicant’s Application, then the Court ought to set aside both the Ruling delivered on 21st October 2025 and the Judgment delivered on 31st October 2024 and order a retrial of the entire suit. Respondent/Applicant’s Submissions 25.The Applicant submitted that the only issue for determination is whether the instant Application is meritorious. 26.It was submitted that Rule 75 of the Employment and Labour Relations Court (Procedure) Rules grants this Court jurisdiction to review and set aside a ruling where there exists a mistake or error apparent on the face of the record. The Applicant argued that an error apparent on the face of the record is one that is self-evident from the record itself without requiring elaborate argument, extensive reasoning or fresh inquiry. 27.The Applicant submitted that in the instant application, the error is manifest and apparent from the record before Court at the time the impugned Ruling was delivered. The record clearly established that the only issue pending determination before Court was the issue of leave days and that the Ruling delivered on 21st October 2025 was only intended to determine that issue. 28.The Applicant further submitted that the Grievant had already been paid his terminal dues being May 2018 salary amounting to Kshs. 24,010.37 on 29th May 2018. It argued that evidence of the said payment was contained in the payslip annexed at pages 13 and 14 of the Supporting Affidavit to this Motion. 29.It was further submitted that on 8th May 2025, the Union formally and expressly withdrew its demand for salary for days worked in May 2018 after the Grievant admitted receipt of payment. The Applicant relied on the Union’s letter dated 15th May 2025 annexed as confirmation of the withdrawal of the claim. 30.The Applicant further argued that on 19th June 2025, both parties confirmed before Court that the only outstanding issue for determination was leave days and not salary for May 2018. 31.The Applicant therefore submitted that the award contained at paragraph 23 of the Ruling was made in respect of a matter that was no longer before Court for determination. The issue of salary for days worked in May 2018 had been conclusively settled by the parties and withdrawn from the purview of the Court. According to the Applicant, awarding the said sum in those circumstances amounted to a clear and self-evident error apparent on the face of the record. 32.The Applicant further submitted that allowing the award to stand would occasion double payment to the Claimant for the same obligation and would amount to unjust enrichment which the Court ought not sanction. 33.It is the Applicant’s submissions that the Ruling dated 21st October 2025 ought to be reviewed and the award of Kshs. 22,350 as salary for days worked in May 2018 set aside as the same was not an issue pending before Court for determination. The Applicant maintained that the Grievant had already been paid his May 2018 salary and had acknowledged the same during the out of court settlement negotiations. 34.The Applicant consequently urged the Court to allow the Application and order the release to the Applicant of the sum of Kshs. 22,350 deposited in Court as a condition for stay of execution pursuant to the directions issued on 28th January 2026 by Hon. Justice Onesmus Makau. Claimant/Respondent’s Submissions 35.The Respondent submitted that the Applicant’s application is anchored on what it termed as “new and important evidence”, namely a transaction advice annexed to the Motion allegedly showing payment of Kshs. 22,350 to the Union’s advocates, Wamae and Allen LLP. The Respondent argued that the said document does not constitute new and important evidence within the meaning of the law. 36.It was submitted that the transaction advice reference number 697206346595 dated 24th February 2026 clearly indicates the beneficiary as Wamae and Allen LLP and not the Grievant or the Claimant Union. The Respondent argued that the description in the transaction advice reading “553388E6C6XMRA/CASE FOR MARK WANGUSI” demonstrates that the payment was made to advocates for professional fees and not in settlement of the decretal award due to the litigant. 37.The Respondent further submitted that the alleged evidence was always within the knowledge and control of the Applicant since it is the Applicant who initiated the said payment. It argued that the Applicant cannot purport to introduce its own transaction as “new evidence” which was allegedly unavailable prior to delivery of the Ruling. 38.It was submitted that the Applicant’s own letter dated 12th November 2025 acknowledged the impugned Ruling and the amount due thereunder without any indication that the decretal amount had already been settled. According to the Respondent, the subsequent payment made on 24th February 2026 appears to have been an attempt to settle the decretal sum and not proof that the amount had been settled before delivery of the Ruling. 39.The Respondent submitted that the Applicant is effectively pursuing an appeal disguised as a review application. It argued that the principles governing review are settled in law and relied on the Court of Appeal decision in National Bank of Kenya Ltd v Njau [1997] KECA 71 (KLR) where the Court of Appeal held that a review is not permissible where a party is simply unhappy with a decision of the court. 40.The Respondent submitted that the Applicant has not identified any error apparent on the face of the record but is instead attempting to introduce factual matters which ought to have been presented during the hearing prior to delivery of the Ruling on 21st October 2025. It argued that the Applicant had sufficient opportunity to demonstrate that payment for the 25 days’ salary had already been made but failed to do so. 41.It was therefore submitted that allowing the Application would amount to permitting the Applicant to benefit from its own omission and would in effect require the Court to sit on appeal over its own decision, which is impermissible in law. 42.The Respondent further submitted that the Applicant’s conduct demonstrates a deliberate attempt to delay finalisation of the matter which has been pending since 2018. It argued that the Applicant has consistently frustrated conclusion of the dispute by opposing the Union’s attempt to amend the main claim, failing to agree to an out of court settlement, failing to present evidence of payment at the appropriate time and now seeking to reopen a concluded matter on what it termed a technicality. 43.It is the Respondent’s submission that the Union remains ready and willing to bring the matter to finality. However, the Respondent argued that should the Court be inclined to allow the Application, then in the interest of substantive justice and finality, the Court ought to set aside both the Ruling dated 21st October 2025 and the Judgment dated 31st October 2024 and order the matter to proceed for hearing de novo. The Respondent argued that such an order would enable the Union to fully prosecute its claims including unpaid leave and overtime dues which, according to it, have never been accounted for by the Applicant. 44.The Respondent therefore urged the Court to find that the Notice of Motion dated 27th January 2026 lacks merit, constitutes an abuse of the Court process and ought to be dismissed with costs. 45.In the alternative, the Respondent prayed that should the Court be inclined to allow the Application, then both the Ruling dated 21st October 2025 and the Judgment dated 31st October 2024 be set aside and the main cause be heard afresh, with costs of the Application borne by the Applicant. 46.I have considered the averments and submissions of the parties. The main contention is about the order issued by court ordering the respondent/applicants to pay the claimant salary of kshs 22,350/- salary for 25 days worked in May 2018. 47.The applicants have pointed out that the claimant had admitted to being paid this moneys and therefore the order was issued erroneously. 48.I have looked at the record of court and I do confirm that the parties did agree that the claim was settled save for the leave days not taken and for which this court directed that parties submit upon for courts determination. 49.It is therefore true from the record that the issue of salary for May 2018 was previously resolved by the parties’ own consent and which it was an error for the court to award again. 50.That error is thus corrected by setting aside paragraph no 23 save for the issue that there shall be no order of costs on this application. There shall be no order of costs on this application. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 28TH DAY OF MAY, 2026.HELLEN WASILWAJUDGE