https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/785

**REPUBLIC OF KENYA** **IN THE CHIEF MAGISTRATES COURT AT MOMBASA** **MAGISTRATE COURT CIVIL** **MCELRC NO. E212 OF 2024** **FRANCIS LISUTSA MMBAYA.................................................CLAIMANT/APPLICANT** **VERSUS** **EXCELLENT SECURITY SERVICES LTD...................................................RESPONDENT** **RULING** **Introduction** 1. Before me is the Claimant/Applicant’s Notice of Motion dated 14th May 2026, brought pursuant to section 80 of the Civil Procedure Act, Order 45 of the Civil Procedure Rules and all other enabling provisions of the law. The Applicant seeks, principally, review and setting aside of the judgment delivered by this Court on 30th April 2026 and costs of the application in the cause. 2. I delivered the impugned judgment on 30th April 2026. In that judgment, I dismissed the Claimant’s claim in its entirety and directed that each party bear its own costs. 3. The Applicant now seeks review on the ground that the judgment contains material factual errors which are apparent on the face of the record. His contention is that portions of the judgment refer to facts which were not part of his case and that those facts found their way into the Court’s reasoning and ultimate determination. 4. The application is supported by the affidavit of Francis Lisutsa Mmbaya. The Respondent opposed it through a Replying Affidavit sworn by Wilson Maghanga Mwatati, its Operations Manager. 5. I have considered the application, the supporting affidavit, the Respondent’s Replying Affidavit, the written submissions filed by the Respondent, the impugned judgment and, importantly, the pleadings, evidence and documentary material forming the record of the original proceedings. The Applicant’s Case 1. The Applicant’s position is that the judgment delivered on 30th April 2026 contains factual findings that are materially inconsistent with the case that was actually heard. 2. The record shows that the Claimant’s case concerned his employment by the Respondent as a Night Security Guard. He pleaded that he was employed on or about 4th May 2016, earned approximately KShs. 11,100 per month at the time of termination and remained in employment until 14th December 2022. 3. The dispute arose from disciplinary proceedings concerning allegations of theft while the Claimant was deployed as a security guard. His case specifically referred to allegations concerning, among other things, four window louvers from his assigned work station. 4. The documentary record includes a suspension letter dated 2nd November 2022, a show-cause letter dated 10th November 2022, and a summary dismissal letter dated 14th December 2022. 5. The Claimant denied the allegations and maintained that the Respondent had failed to establish his involvement in the alleged theft. He subsequently instituted the present claim challenging the substantive and procedural fairness of his dismissal and claiming various employment dues. The Error in the Judgment 1. Upon reconsidering the judgment of 30th April 2026 against the actual court record, I am satisfied that the Applicant’s complaint is factually well founded. 2. The judgment contains references to a materially different factual matrix. Among other matters, it refers to a Claimant who: 3. was employed as a Mixer; 4. earned a salary of KShs. 25,386; 5. was involved in an incident concerning a bag of flour; 6. was allegedly required to sign a deduction form for KShs. 10,000; 7. received a show-cause letter in 2024; 8. underwent disciplinary proceedings in August 2024; and 9. faced allegations relating to low production quality and poor performance. 10. Those facts do not correspond with the pleadings and evidence in the present cause. More significantly, the discrepancies were not confined to the introductory or background section of the judgment. Some of the erroneous facts found their way into the Court’s substantive reasoning. 11. In determining whether there was substantive justification for termination, the judgment referred to matters concerning a mixing defect, flour, a deduction and disciplinary events in July and August 2024. 12. In determining procedural fairness, the judgment similarly referred to a show-cause process and disciplinary hearing in 2024. The correct record before the Court concerned a security guard and disciplinary proceedings undertaken in 2022. There is therefore no difficulty in identifying the error. It is apparent upon comparing the judgment with the record of the proceedings. Respondent’s Response 1. The Respondent does not wholly deny the existence of the discrepancies. In the Replying Affidavit, the Respondent acknowledges that there may be inadvertent errors in certain portions of the judgment, but argues that they do not constitute substantive errors of such magnitude as to warrant review or setting aside. 2. The Respondent maintains that it produced documentary evidence establishing valid reasons for the Claimant’s termination and evidence showing that the Claimant was afforded procedural fairness. 3. Its position is therefore that the errors are incidental and that the Court’s conclusions on substantive and procedural fairness remain sustainable independently of them. 4. In its submissions, the Respondent further argues that the errors are properly characterised as slip-rule errors capable of correction without disturbing the judgment. 5. The Respondent submits that the Applicant has failed to demonstrate a causal nexus between the errors and the ultimate determination and contends that the application is, in substance, an attempt to have the Court reconsider evidence already determined. 6. The Respondent relies, inter alia, on Fredrick Otieno Outa, SC Civil Application No. E019 of 2023, National Bank of Kenya Ltd v Njau [1997] KECA 71 (KLR) and CKO v JMO (2025) KECA 207. **Issues for Determination** 1. From the application and the parties’ respective positions, I consider the following issues to arise: 2. Whether there is an error apparent on the face of the record; 3. Whether the errors are merely clerical errors capable of correction under the slip rule; 4. Whether the errors materially affected the judgment so as to warrant review; and 5. What orders should issue. Whether There Is an Error Apparent on the Face of the Record 1. Section 80 of the Civil Procedure Act read together with Order 45 Rule 1 of the Civil Procedure Rules gives the Court jurisdiction to review its judgment on, among other grounds, discovery of new and important matter or evidence, mistake or error apparent on the face of the record or any other sufficient reason. 2. The present application does not turn upon discovery of new evidence. The correct material was already before the Court when judgment was delivered. 3. What falls for determination is whether the incorporation into the judgment of facts which do not correspond with this case amounts to an error apparent on the face of the record. I am satisfied that it does. No elaborate argument or extensive interrogation of conflicting evidence is required to establish the error. 4. The Claimant before the Court was a Night Security Guard whose employment dispute arose from disciplinary proceedings conducted in 2022. The judgment nevertheless contains material findings concerning a Mixer, a different salary, flour, a deduction and disciplinary proceedings in 2024. These are plainly not alternative versions of evidence presented by the parties in the present proceedings. The error is therefore patent from the record. Whether the Errors Fall Within the Slip Rule 1. The Respondent has urged the Court to treat the discrepancies as clerical errors capable of correction under the slip rule. I have carefully considered that argument. The authority relied upon by the Respondent, Fredrick Otieno Outa, SC Civil Application No. E019 of 2023, supports the principle that a court may correct an obvious error where the correction does not change the substance of the judgment or alter the clear intention of the Court. I respectfully accept that principle. However, its application does not assist the Respondent in the peculiar circumstances of this matter. 2. There is a fundamental distinction between an erroneous date, name, figure or other clerical entry on the one hand, and the incorporation of an entirely different factual matrix into the judicial reasoning on the other. 3. Had the judgment merely misstated the Claimant’s salary, misspelled a name or erroneously recorded a date while otherwise analysing the correct disciplinary process, the error could readily have been corrected without disturbing the judgment. That is not what occurred here. The incorrect factual material entered into the Court’s reasoning on the two central questions in the employment dispute: substantive justification and procedural fairness. In considering substantive fairness, the judgment referred to the incorrect incidents concerning flour, a mixing defect, a deduction and disciplinary events in 2024. In considering procedural fairness, it relied upon a show-cause letter and disciplinary hearing from the same incorrect factual matrix. Those matters were then connected to the Court’s findings under sections 41, 43 and 45 of the Employment Act. Consequently, correcting the judgment would not involve simply deleting or substituting an erroneous word, date or figure. 4. It would require the Court to remove the incorrect factual foundation and reconsider the questions of substantive and procedural fairness against the actual disciplinary process undertaken against Francis Lisutsa Mmbaya in 2022. That is beyond the scope of the slip rule. I therefore reject the Respondent’s contention that the errors are merely clerical. Whether the Errors Materially Affected the Judgment 1. The Respondent argues that even if the errors exist, the Applicant has not shown that they altered the outcome of the case. I have considered that submission carefully because the mere presence of an error in a judgment does not necessarily justify setting aside the whole judgment. The materiality of the error must be considered in its context. 2. In the present case, the errors concern the identity of the employment, the salary, the alleged misconduct, the chronology of disciplinary proceedings and the material relied upon when determining whether the employer had established a valid reason for termination and complied with procedural fairness. Those matters go to the heart of an unfair-termination claim. 3. Under sections 43 and 45 of the Employment Act, the Court was required to determine whether the Respondent had demonstrated a valid and fair reason for terminating this particular Claimant. 4. Similarly, in considering section 41 of the Employment Act, the Court was required to determine whether the disciplinary process actually undertaken against this Claimant satisfied the statutory requirements of procedural fairness. 5. It would therefore be unsafe to conclude that reliance upon a materially different factual matrix had no effect upon those determinations. The Respondent argues that its documentary evidence independently justified the result. That is an argument concerning the merits of the claim upon the correct record. 6. The Court cannot preserve the original result merely by assuming that, had the correct facts been considered, it would necessarily have arrived at the same conclusion. Judicial determination requires the Court to assess the correct evidence first and thereafter reach its conclusion. The Respondent’s submission effectively asks the Court to preserve the conclusion and retrospectively reconstruct a different factual route to it. I decline to do so. 7. The integrity of the judicial process requires that the reasons recorded by the Court correspond with the case actually presented by the parties. I therefore find that the errors materially affected the judgment and are sufficient to warrant review. Whether the Application Is an Appeal in Disguise 1. The Respondent further relies upon National Bank of Kenya Ltd v Njau [1997] KECA 71 (KLR) for the proposition that review cannot be used as an appeal against a court’s own decision. Again, I agree with that principle. 2. A party who merely disagrees with a court’s assessment of evidence, interpretation of law or ultimate conclusion cannot ordinarily invoke review to obtain a rehearing. The present circumstances are distinguishable. The Applicant is not merely contending that I drew an incorrect inference from the evidence properly before me. He has demonstrated that the judgment itself contains and relies upon material facts which did not form part of his case. 3. Correcting that defect does not amount to sitting on appeal over my own judgment. It is an exercise of the Court’s review jurisdiction to correct a material error apparent from its own record. I therefore find that the application is properly before the Court under the review jurisdiction. Appropriate Consequential Order 1. Having reached that conclusion, I must determine the appropriate consequential order. I do not consider it necessary to order a rehearing of the suit. The defect identified relates to the judgment and not to the manner in which the parties presented their respective cases. 2. The pleadings, witness evidence and documentary material remain on the Court record. The Respondent itself maintains that the matter was fully heard and that both parties placed their evidence before the Court. 3. No party has demonstrated that the trial itself was procedurally defective or that additional evidence must be taken. In those circumstances, directing the parties to begin the hearing afresh would unnecessarily duplicate proceedings and occasion additional expense and delay. 4. The appropriate course is therefore to set aside the judgment of 30th April 2026 and for this Court to reconsider the matter and render a fresh judgment exclusively upon the pleadings, evidence, exhibits and submissions properly forming part of this cause. I emphasise that allowing the present application does not mean that the Claimant has succeeded in his underlying claim. Neither does it mean that the Respondent has failed to establish substantive or procedural fairness. Those questions must now be determined afresh upon the correct record. **Disposition** 1. In the result, I find that the Notice of Motion dated 14th May 2026 is meritorious. Accordingly, I make the following orders: 2. The Notice of Motion dated 14th May 2026 is hereby allowed. 3. The judgment delivered by this Court on 30th April 2026 is hereby reviewed and set aside in its entirety. 4. The pleadings, oral evidence, documentary evidence and submissions already properly forming part of the record shall remain on record. 5. The Court shall proceed to reconsider the suit on the basis of the correct record and deliver a fresh judgment. 6. For avoidance of doubt, the Court shall, in the fresh judgment, determine afresh the questions of substantive and procedural fairness of the Claimant’s termination and the Claimant’s entitlement, if any, to the reliefs sought. 7. Nothing contained in this ruling shall be construed as expressing a concluded view on the merits of the original claim. 8. Costs of the application shall be in the cause. Orders accordingly. **DELIVERED VIA MICROSOFT TEAMS AT MOMBASA THIS 27TH AUGUST 2026.** **………………………..** **HON.E.M. MWAMUYE** **SENIOR RESIDENT MAGISTRATE**