https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1673

Mwau v I & M Bank Limited (Cause E321 of 2020) [2026] KEELRC 1673 (KLR) (19 June 2026) (Ruling) Neutral citation: [2026] KEELRC 1673 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Cause E321 of 2020 CN Baari, J June 19, 2026 Between Joseph Mulela Mwau Claimant and I & M Bank Limited Respondent Ruling 1.This ruling relates to the Claimant/Applicant’s Notice of Motion application dated 27th February, 2026, made pursuant to Section 16 of the Employment and Labour Relations Act, Rule 33 of the Employment and Labour Relations Court (Procedure) Rules, 2016, Order 45 of the Civil Procedure Rules, and Section 49 of the Employment Act, 2007. The Applicants pray THAT: -i.Spentii.The Honourable Court be pleased to review its judgment delivered on 30th June, 2025 for purposes of correcting the Claimant’s monthly salary used in computing compensation.iii.The Court be pleased to substitute the figure of Kshs. 40,000/- as gross salary with the correct salary of Kshs.96,840/- per month, at the time of termination.iv.Consequently, the award of 8 months' salary be recalculated on the basis of Kshs.96,840/- per month.v.Costs of the application be in the cause. 2.The application is supported by grounds on the face thereof and the affidavit sworn on 27th February, 2026, by Joseph Mulela Mwau, the Claimant/Applicant herein. 3.The Applicant states that the court awarded him compensation equivalent to 8 months’ salary in a judgment delivered on 30th June, 2025. He contends that during the trial, he produced his initial employment letter reflecting a salary of Kshs. 40,000/-, and he did not disclose his salary as at the time of termination to the court. 4.It is his case that his salary was increased to Ksh. 90,000 per month and later to KShs. 96,840 as shown in his pay slip and letter of increment, which were inadvertently not produced at the hearing. 5.The Claimant/Applicant avers that both the increment letter and his pay slips were omitted inadvertently during the trial and that it is just that he is fairly compensated. 6.It is his case that the omission was neither deliberate nor intended to mislead the court. He avers further that no decree has been extracted and no settlement in respect of the award has been made. 7.He finally avers that it is in the interest of justice that the compensation awarded pursuant to Section 49 of the Employment Act reflects the actual salary earned as at the time of his termination. 8.The Respondent opposed the application vide a replying affidavit sworn by Andrew K. Muchina on 9th April, 2026. The Respondent contends that the review application is incompetent, misconceived, and an abuse of the court process on the basis that it fails to satisfy the requirements for review under Section 16 of the Employment and Labour Relations Court Act and Rule 74 of the ELRC (Procedure) Rules. 9.The Respondent denies the Claimant’s allegation that the Court relied on an erroneous salary figure in its Judgment of 30th June 2025. The Respondent further argues that the Claimant has not discovered any new and important evidence that was unavailable during the trial. Instead, the Claimant admits that he was aware of the alleged salary increments and that the documents now relied upon, including payslips and increment letters, were always within his possession or control but were not produced during the hearing. 10.The Respondent states that these documents do not constitute new evidence for purposes of review, as they were within the Claimant’s knowledge and could have been produced with reasonable diligence at trial. It avers that the failure to present them earlier is attributed to the Claimant’s own omission, negligence, or lack of diligence, which cannot be remedied through a review application. 11.The Respondent argues that the Claimant had ample opportunity to present all relevant evidence or seek leave to file additional documents, but failed to do so. The Respondent further contends that the Court correctly based its judgment on the salary figure pleaded and supported by the Claimant’s own evidence, including documents indicating a salary of Kshs. 40,000, hence there is no error apparent on the face of the record. 12.It is the Respondent’s case that any reconsideration of the salary figure would require the Court to re-evaluate evidence and admit new material, which falls outside the scope of review and is a matter for appeal rather than review. 13.The Respondent contends that the application is an improper attempt to reopen the case, introduce fresh evidence, and secure a higher award by inviting the Court to effectively sit on appeal over its own judgment. It avers further that if dissatisfied with the judgment, the Claimant's proper remedy was to file an appeal rather than seek review. 14.The Respondent further argues that the application was filed several months after the judgment, and that the delay has not been satisfactorily explained. It states that the explanation that the Claimant spent months searching for documents relating to his own salary and employment records is implausible. 15.The Respondent also maintains that allowing the application would cause substantial prejudice by reopening a concluded dispute, introducing evidence that was not tested through cross-examination, and potentially increasing the award against the Respondent. 16.It is its case that, having defended the claim based on the pleadings and evidence presented at trial, the Respondent is entitled to the finality of litigation and the certainty of the Court's judgment. 17.The Respondent contends that the application is meritless and a delayed attempt to reopen the case, introduce evidence that was available during the trial, and challenge the Court’s judgment through review instead of appeal. 18.It avers that the Claimant has not established any new evidence, error apparent on the face of the record, or other valid ground for review, and allowing the application would prejudice the Respondent and undermine the finality of litigation. 19.The Respondent finally urges the Court to dismiss the application with costs. 20.Parties canvassed the application by way of written submissions, which have been duly considered. Analysis and Determination 21.The sole issue for determination is whether the Claimant/Applicant has satisfied the legal threshold for review of the judgment delivered on 30th June 2025. 22.The Court's power of review is derived from Section 16 of the Employment and Labour Relations Court Act and Rule 74 of the Employment and Labour Relations Court (Procedure) Rules, 2024. Rule 74 provides that a person aggrieved by a decree or order may apply for review on the grounds of discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the applicant's knowledge or could not be produced at the time the decree was passed, or where there is a mistake or error apparent on the face of the record or where the judgment or ruling requires clarification or for any other sufficient reason. 23.In National Bank of Kenya Ltd v Ndungu Njau [1997] eKLR, the Court of Appeal held: -“A review may be granted whenever the court considers that it is necessary to correct an apparent error or omission… The error must be self-evident and should not require an elaborate argument.” 24.Similarly, in Pancras T. Swai v Kenya Breweries Ltd [2004] KEHC 194 (KLR), the Court of Appeal emphasized that review is not available merely because a party has discovered a better way of presenting its case or wishes to introduce evidence that could, with due diligence, have been produced earlier. 25.Further, the Supreme Court in Parliamentary Service Commission v Martin Nyaga Wambora & Others [2018] KESC 74 (KLR), reiterated that review jurisdiction is narrow and cannot be invoked to reopen concluded litigation except within the prescribed grounds. 26.The Applicant's argument is that the Court used an incorrect salary figure because his salary had increased from Kshs. 40,000 to Kshs. 96,840, and that the increment letters and pay slips proving the increase were inadvertently omitted during the trial. 27.The difficulty with this argument is that the Applicant expressly admits that the documents existed at the time of trial and were within his possession and knowledge, and his explanation is merely that they were inadvertently omitted. For evidence to qualify as "new and important matter", it must not only be relevant, but it must also be evident that it could not, despite the exercise of due diligence, have been produced during the hearing. 28.The increment letters and pay slips are personal employment records belonging to the Applicant. No evidence has been placed before the Court demonstrating efforts made to obtain them before trial or showing that they were unavailable despite due diligence. The explanation that they were omitted inadvertently or were not readily traceable does not satisfy the strict threshold contemplated under Rule 74. 29.In my considered view, review cannot be granted where the evidence sought to be introduced was available and could have been produced during the hearing through reasonable diligence. 30.In light of the foregoing, I find and hold that the documents relied upon do not constitute new and important evidence within the meaning of Rule 74 of the Employment and Labour Relations Court (Procedure) Rules, 2024. 31.On whether there is an error apparent on the face of the record, the Applicant’s argument is that the Court used an incorrect salary figure when computing compensation. An error apparent on the face of the record must be self-evident and not one that requires elaborate argument or re-evaluation of evidence to establish. 32.The judgment herein was based on the pleadings and evidence placed before the Court. The Applicant does not point to any arithmetic mistake, clerical error, accidental slip, or omission committed by the Court. Rather, he seeks to introduce additional evidence showing that a different salary ought to have been considered. 33.To determine whether the salary was Kshs. 40,000 or Kshs. 96,840 would require the Court to admit fresh evidence and reassess factual matters already determined at trial. Such an exercise goes beyond correcting an apparent error and amounts to a reconsideration of the merits of the decision. 34.The Court therefore finds that no error apparent on the face of the record has been demonstrated. 35.On whether the motion herein was filed within reasonable time, the judgment was delivered on 30th June 2025, whereas the present application was filed on 27th February 2026, approximately eight months later. 36.Although no rigid timeline is prescribed, an application for review must be made without unreasonable delay. The explanation advanced is that the Applicant was searching for the omitted documents. Given that the documents are his own payslips and salary increment letters, the explanation is, in my view, not satisfactory. 37.In the end, I find and hold that the Claimant/Applicant has failed to satisfy the requirements for review, and his motion is devoid of merit and is dismissed in its entirety. 38.I make no orders on costs. 39.Orders of the Court. SIGNED, DATED, AND DELIVERED BY VIDEO-LINK AND IN COURT AT NAIROBI THIS 19TH DAY OF JUNE, 2026.C. N. BAARIJUDGEAppearance:Mr. Wangila present for the Claimant/ApplicantMr. Sewe h/b for Mr. Weru for the RespondentMs. Esther -C/A