https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1608

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NYERI** **ELRC APPEAL NO. E002 OF 2025** **BETWEEN** **KUTUS STAGE SAVINGS &** **CREDIT CO-OPERATIVE SOCIETY..............APPELLANT/RESPONDENT** **AND** **FRNACIS MUNENE NYAMAU..........................RESPONDENT/APPLICANT** **RULING** 1. By way of a judgment delivered on 17th April 2026, the Court made the following final orders: - 2. **The award of compensation for unfair termination is hereby set aside in its entirety.** 3. **The award for salary underpayments is upheld but reduced from Kshs 1,805,374.00 to Kshs 1,674,121.10, calculated as follows: Kshs 17,082.77 × 7 months + Kshs 21,597.67 × 12 months + Kshs 23,077.54 × 48 months + Kshs 26,806.82 × 7 months, covering the period from 1st October 2016 to 30th November 2022.** 4. **The award of salary for 11 days in December 2022 is sustained but reduced from Kshs 13,612.00 to Kshs 12,762.50.** 5. **The award of accrued leave is sustained but reduced from Kshs 159,220.00 to Kshs 36,547.16.** 6. **The award of unpaid house allowance of Kshs 455,371.00 is set aside in its entirety, as it is subsumed within the award for salary underpayments.** 7. **The award of service pay of Kshs 113,410.00 is set aside in its entirety.** 8. **The total decretal amount is determined at Kshs 1,723,430.76.** 9. **Costs in this Court and at the trial Court shall be borne by the Appellant and shall be pegged on the final award.** 10. Consequently, the Respondent/Applicant filed the present Notice of Motion dated 23rd April 2026 seeking the following orders: - 11. **Spent.** 12. **THAT this Honourable Court be pleased to review and/or clarify its Judgment delivered on 17th April 2026 so as to address the omission regarding interest, and to expressly state whether the decretal sum of Kshs.1,723,430.76/- attracts interest and if so, the terms thereof.** 13. **THAT in the alternative to prayer 2 above, this Honourable Court be pleased to review its Judgment delivered on 17th April 2026 so as to reflect the award of interest on the decretal sum as set out in the decree of the subordinate court in CMELRC E006 of 2023: Francis Munene Nyamau vs Kutus Stage Savings & Credit Co-operative Society Ltd.** 14. **THAT costs of this application be provided for.** 15. The Notice of Motion is premised on the grounds appearing on its face and is supported by the Affidavit of ***Francis Munene Nyamau***, the Applicant herein. 16. Mr. Nyamau deposes that in its judgment and decree in CMELRC E006 of 2023, the trial court awarded interest on the decretal sum at court rates with effect from 11th December 2022, and that such interest formed part of the decree now subject of this Appeal. 17. He further avers that since interest constituted part of the reliefs granted by the trial court, it was a live issue for determination by this Honourable Court in assessing the propriety and sustainability of the trial court’s award. 18. Mr. Nyamau states that at paragraph 55 of its judgment delivered on 17th April 2026, this Honourable Court varied and reconstituted the decretal sum and costs but did not make any express pronouncement on the issue of interest. As a result, it remains unclear whether the varied decretal sum of Kshs. 1,723,430.76/- attracts interest, and if so, at what rate and from what date. 19. He avers that the said omission has rendered the resultant decree of the trial court subject to competing interpretations and incapable of proper execution without clarification of this Honourable Court. 20. Mr. Nyamau avers that he has been advised by his Advocates on record, which advice he verily believes to be correct, that the failure to address the issue of interest constitutes an error apparent on the face of the record and therefore warrants clarification under Rule 74 of this Honourable Court’s Rules. 21. The Appellant/Respondent responded to the Notice of Motion through a Replying Affidavit sworn on 12th May 2026 by ***Mumo Kiio John***, its advocate on record. 22. Mr. Mumo agrees with the Applicant that while this Court varied the judgment of the trial court and recalculated the award payable to the Respondent, it did not expressly determine the issue of interest or specify the date from which such interest ought to accrue. 23. He further states that upon variation and recalculation by the appellate court, the decree of the trial court was effectively altered to the extent of that variation, and accordingly, the issue of interest remains a matter within the discretion of this Honourable Court. 24. Mr. Mumo avers that it would be just, fair, and equitable for interest on the varied award to run from the date of the appellate judgment and/or decree, on the basis that the decretal sum only became ascertainable upon determination by this Court. 25. In his view, awarding interest from the date of the subordinate court’s judgment on a sum that was subsequently varied would occasion prejudice to the Appellant/Respondent and would not reflect the final determination made by this Honourable Court. **Submissions** 1. The parties filed skeleton submissions, which this Court has considered. On his part, the Applicant has submitted that this Court neither varied nor set aside the trial court’s award of interest effective 11th December 2022. That in the absence of an express variation or reversal, the trial court’s order on interest remained undisturbed notwithstanding the reduction of the decretal sum on appeal, and notwithstanding this Court’s silence thereon. 2. The Applicant further submits that the Appellant’s proposal on interest would improperly invite the Court, through review proceedings, to reconsider the merits of the trial court’s award of interest effective 11th December 2022, when the same was neither challenged in the appeal nor determined or disturbed by this Court on appeal. In the Applicant’s view, this would be beyond the purview of review proceedings. 3. The Applicant has further posited that there is nothing in the judgment of this Court to suggest that the Court intended either to deny him interest altogether or to vary the terms upon which the trial court had awarded such interest. 4. Referencing the case of ***Shah v National Bank of Kenya Limited (Civil Appeal 103 of 2013) [2023] KEHC 1324 (KLR),*** the Applicant posits that the trial court had already exercised its discretion and awarded interest at court rates from 11th December 2022 (being the date of termination of employment) until payment in full. He contends that that aspect of the decree was not disturbed by this Court on appeal. Further support on this position was gathered from the case of ***Abdi v Board of Trustees of the Anglican Church of Kenya Marsabit Diocese (Civil Appeal 4 of 2018) [2023] KEHC 18040 (KLR)*** with the Applicant maintaining that in the absence of this Court’s express interference with the trial court’s pronouncement on interest from 11th December 2022, the trial court’s order on interest remained intact and ought to apply to the reconstituted decretal sum. 5. On its part, the Appellant/Respondent has submitted that the claim before the trial court was an unliquidated claim whose value and entitlement could only be ascertained upon determination by the court. It is the Appellant’s position that the general rule governing awards of interest in such claims is well settled in that interest runs from the date of judgment because it is only upon judgment that the right to the sum awarded crystallizes. 6. Citing the case of ***Suntra Investment Bank Limited v Nicholas William Bentley-Buckle & Another & 2 Others (Suing in their Capacity as Executors of the Estate of Anthony William Bentley-Buckle (Deceased)) (Civil Appeal 231 of 2020 & 322 of 2019 & E340 of 2021 (Consolidated)) [2025] KECA 1591 (KLR),*** the Appellant has submitted that interest on unliquidated claims does not accrue before judgment unless exceptional circumstances exist. The Appellant submits that no such exceptional circumstances have been demonstrated by the Applicant in the present matter. **Analysis and Determination** 1. Pursuant to **Rule 74 (1) of the Employment and Labour Relations Court (Procedure) Rules, 2024,** this Court may review its orders where any of the following grounds are established: - 2. ***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;*** 3. ***on account of some mistake or error apparent on the face of the record;*** 4. ***if the judgment or ruling requires clarification; or*** 5. ***for any other sufficient reason.*** 6. In the present case, it is apparent that the review sought by the Respondent/Applicant is confined to clarification of this Court’s final orders relating to interest on the final award. Accordingly, there is no doubt that the instant Notice of Motion falls within the ambit of Rule 74(1) of the Rules aforementioned. 7. In its judgment delivered on 17th April 2026, this Court set aside in their entirety the awards of compensation for unfair termination, house allowance, and service pay. The Court, however, upheld the awards in respect of salary underpayment, accrued annual leave, and salary for days worked, albeit with recomputation, and ultimately arrived at a total award of **Kshs. 1,723,430.76**. 8. As correctly observed by both parties, the Court did not make any express pronouncement on the issue of interest in its final orders. This omission is attributable to the fact that the issue of interest did not arise as a substantive ground for determination in the appeal. Nonetheless, in the absence of any variation or interference with the trial court’s order on interest, the same remains undisturbed. 9. For avoidance of doubt and clarity, the total award of **Kshs. 1,723,430.76** shall accrue interest at court rates from 11th December 2022, as awarded by the trial court, until payment in full. 10. There shall be no order as to costs in respect of the present Notice of Motion. **DATED, SIGNED** and **DELIVERED** at **NYERI** this **12th** day of **June** 2026. **………………………………** **STELLA RUTTO** **JUDGE** **In the presence of:** For the Appellant/Respondent Mr. Mumo instructed by Mr. Kimemia For the Respondent/Applicant Mr. Malonza Court Assistant Ndati **ORDER** In view of the declaration of measures restricting Court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules, which requires that all judgments and rulings be pronounced in open Court. In permitting this course, this Court had been guided by Article 159(2)(d) of the Constitution which requires the Court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 1B of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) which impose on this Court the duty of the Court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes. **STELLA RUTTO** **JUDGE**