https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1916

Noor v Maasai Mara University (Petition E020 of 2024) [2026] KEELRC 1916 (KLR) (3 July 2026) (Ruling) Neutral citation: [2026] KEELRC 1916 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nakuru Petition E020 of 2024 AN Mwaure, J July 3, 2026 Between Hassan Abdi Noor Petitioner and Maasai Mara University Respondent Ruling Introduction 1.The Petitioner/Applicant filed a Notice of Motion dated 7th November 2025 under Certificate of urgency on the following orders that:1.Spent2.Pending hearing and determination of this application, this Honourable court be pleased to extend the 30 day stay of execution of the judgment dated 24th October 2025 issued during delivery of the said judgment.3.This Honourable court be pleased to review, vary and/or set aside its judgment and/or orders delivered on 24th October 2025 by Honourable Lady Justice Anna Ngibuini Mwaura to the extent that it declined to reinstate the Petitioner/Applicant herein to his erstwhile position and full terms of employment.4.Upon review, this Honourable Court be pleased to make a finding and hold that the Petitioner/Applicant herein is an employee of the Respondent who, having been unfairly subjected to an indefinite suspension, ought to resume his ordinary duties and be accorded the full benefits of his employment.5.This Honourable court be pleased to make such further or other orders as it may deem just and expedient in the circumstances of this case.6.The costs of this application be provided for. 2.The application is brought under sections 3 and 16 of the Employment and Labour Relations Court Act, Rule 74 of the Employment and Labour Relations Court(Procedure) Rules 2024 and Article 159 of the Constitution. Petitioner/Applicant’s supporting affidavit 3.The application is supported by the Petitioner/Applicant dated even date. 4.The Petitioner/Applicant avers that owing to the Respondent’s malice and violation of his rights, he filed a Petition seeking declarations that his indefinite suspension was unlawful and that he be reinstated to his position with full benefits. 5.The Petitioner/Applicant avers that on 24th October 2025, this Honourable Court acknowledged the injustice occasioned by the Respondent’s indefinite suspension since 28th August 2020, declaring the continued suspension unfair, unlawful, and unconstitutional. 6.The Petitioner/Applicant emphasizes that his employment was never terminated, as confirmed by the court’s own analysis, and that he remained on the Respondent’s payroll, albeit receiving partial salary. 7.The Petitioner/Applicant contends that the court’s reference to him being “out of his job” was a mischaracterization inconsistent with its earlier findings that he was “on suspension” and “in limbo for over five years.” 8.The Petitioner maintains that neither party alleged termination and that the court’s inadvertent inference of termination constitutes an error apparent on the face of the record, resulting in a miscarriage of justice and exposing him to the risk of losing his employment. 9.The Petitioner/Applicant avers that unless this Honourable Court reviews its judgment as prayed, he will remain in a state of uncertainty, as no reinstatement order exists and no fair administrative process can conclusively resolve his suspension. 10.The Petitioner/Applicant contends that once the 30‑day stay of execution lapses, the Respondent may terminate his employment, rendering the application and review moot. 11.The Petitioner/Applicant urges that varying the Court’s orders as sought will correct the apparent error and alleviate further anguish. On the advice of her Advocates, he asserts that equity disfavours injunctions incapable of enforcement and that the Court should review its judgment to give effect to the injunction granted under order (c). He further relies on section 16 of the Employment and Labour Relations Court Act, Cap 8E, and Rule 74 of the Employment and Labour Relations Court (Procedure) Rules, which empower the Court to review decisions where an error appears on the face of the record, or sufficient cause exists. 12.The Applicant maintains that failure to exercise this discretion will perpetuate injustice, while granting the orders sought will occasion no prejudice to the Respondent and will serve the interests of justice and fairness. Respondent’s preliminary objection and replying affidavit 13.The Respondent opposed the application vide a preliminary objection dated 26th January 2026 and filed a replying affidavit sworn by Alfred Nyabochwa, the Respondent’s Deputy Chief officer, dated even date. 14.In the preliminary objection, the Respondent set out the following grounds that:1.This Honourable court lacks the jurisdiction to entertain the application dated 7th November, 2025 seeking review of the judgment as delivered on 24th October, 2025, as envisaged under section 74 of the Employment and Labour Relation Court (Procedure) as the Petitioner/Applicant had previously filed a Notice of Appeal dated 28th October, 2025 before the Court of Appeal and as envisage by section 2(2) of the Court of Appeal Rules defines an appeal to include an intended appeal.2.In this regard, the honourable court is functus officio on the determination as it has rendered itself vide judgment as delivered on 24th October, 2025, by Hon. Anna Ngibuini Mwaure. 15.In the replying affidavit, the Respondent avers that the application is incompetent and overtaken by events since the Applicant has already filed a Notice of Appeal dated 28th October 2025, thereby extinguishing the right to seek review. 16.The Respondent cited the cases of Kenya Human Rights Commission & 8 Others v Nchebere; Law Society of Kenya & 2 Others [2025] KEHC 2829 (KLR) and Otieno Ragot & Co. Advocates v National Bank of Kenya Ltd [2020] KEHC 1879 (KLR), and argues that one cannot pursue an appeal and review concurrently. 17.The Respondent further contends that no error apparent on the face of the record, new evidence, or sufficient cause has been demonstrated under section 74 of the Employment and Labour Relations Court (Procedure) Rules. 18.The Respondent maintains that issues raised, such as alleged misinterpretation of termination, are matters for appeal, not review, and that the 30‑day stay of execution merely allowed time for appeal. 19.The Respondent prays that the application be dismissed as frivolous, vexatious, and an abuse of court process, emphasizing that litigation must come to an end. 20.Parties canvassed the application by way of written submissions. Petitioner/Applicant’s submissions 21.The Petitioner/Applicant submitted that the court must first consider the Respondent’s preliminary objection dated 26th January 2026, which challenges the court’s jurisdiction on the grounds that it is functus officio, arguing that the filing of the Notice of Appeal on 28th October 2025 bars the review. The Petitioner/Applicant counters this by relying on the decision of W. Ouko JA (as he then was) in Multichoice (Kenya) Ltd v Wananchi Group (Kenya) Ltd, Communications Commission of Kenya & Kenya Broadcasting Corporation [2020] KECA 633 (KLR), where the court held that the mere filing of a notice of appeal does not automatically preclude a review application unless a substantive appeal has been instituted. 22.The Petitioner/Applicant placed reliance on section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules, which permit review where no appeal has been preferred. The Petitioner/Applicant also relied on an Australian case in Muller v Dalgety & Co. Ltd (1909), which described “deemed” as creating a statutory fiction extending the meaning of a term to a subject matter it does not ordinarily cover, depending on legislative intent. Similarly, the East African Court of Justice in Anyang’ Nyong’o & 10 Others v Attorney-General & Others (2008) 3 KLR (EP) 398 held that the word is used to assume the existence of a fact that does not actually exist. Consequently, the court found that “deemed,” as used in Order 42 Rule 6(4) of the Civil Procedure Rules, does not equate to an appeal in the strict sense. It clarified that a substantive appeal and a notice of appeal are complementary; one cannot exist without the other, and if an appeal is not filed within the prescribed time, the notice is deemed withdrawn or struck out. Finally, the Court emphasized that an appeal involves a judicial examination of a lower court’s decision based on the memorandum of appeal and supporting record. 23.The Petitioner/Applicant submitted that under Rule 2 of the Court of Appeal Rules, the definition of an appeal must be interpreted within its full textual and contextual framework. The Court clarified that to determine whether a notice of appeal constitutes an appeal, one must consider all relevant provisions together. It concluded that the court retains jurisdiction to entertain a review application where only a notice of appeal has been lodged, but loses that jurisdiction once a substantive appeal is filed under Rule 82. In this case, since only the Notice of Appeal dated 28th October 2025 was filed and the sixty‑day period for lodging the substantive appeal has expired, the notice is deemed withdrawn or struck out. Therefore, the Petitioner/Applicant argued that the court still has jurisdiction to hear the review application, rendering the Respondent’s preliminary objection meritless. 24.The Petitioner/Applicant relied on Order 45 Rule 1 of the Civil Procedure Rules and the Court of Appeal case of Kenya Postel directories Limited & another v D Yellow Pages Publishing & Marketing Limited & Another [2026] KECA 105 (KLR), which explained that an error apparent on the face of the record must be self-evident and not one that requires elaborating argument or a re-evaluation of contested issues. The Petitioner/Applicant argued that in the judgment of 24th October 2025, the Court found his prolonged suspension violated his rights but declined to reinstate him, citing his extended absence from duty. The Petitioner/Applicant argued that this refusal amounts to an error apparent on the face of the record, as the Court wrongly inferred that his employment had been terminated due to the suspension. He contends that since the Court acknowledged the suspension was unconstitutional, it could not simultaneously treat it as termination. This inconsistency, he submits, has caused a miscarriage of justice, leaving him at risk of losing his employment and warranting a review of the judgment. 25.The Petitioner/Applicant relied on the Supreme Court case in Dzila v Kwale County Assembly Services Board & 6 others [2025] KESC 33 (KLR), which stated that suspension from employment does not amount to termination but is merely a temporary measure to facilitate investigations. The Court of Appeal case in Kwale County Assembly Service Board & 6 Others v Dzila [2024] KECA 945 (KLR), upheld by the Supreme Court in Dzila v Kwale County Assembly Service Board & 6 Others(supra), quoted with approval in Luka Korir v Moi Teaching and Referral Hospital [2022] KEELRC 14700 (KLR), the court held that suspension is a preliminary stage in disciplinary proceedings and does not sever the employment relationship. 26.Similarly, in Mungai v Kenya Forestry Research Institute & Another [2026] KEELRC 384, Justice Nduma Nderi ruled that an employee suspended pending criminal charges was entitled to full salary until retirement, based on a legitimate expectation of reinstatement upon acquittal. Collectively, these authorities affirm that suspension, however prolonged, does not terminate employment unless followed by a lawful disciplinary or termination process. 27.The Petitioner/Applicant concludes that, having been suspended only to facilitate investigations and later cleared of any wrongdoing, is entitled to reinstatement with full employment rights and benefits. He argues that denying reinstatement would amount to an unlawful severance of the employment relationship. 28.The Petitioner/Applicant therefore urges the Court to review and vary its judgment of 24th October 2025, which declined reinstatement, to correct the error and prevent further injustice. In the interest of fairness and justice, he prays that the Court grant the application dated 7th November 2025 and direct the Respondent to reinstate him to his former position. Respondent’s submissions 29.The Respondent submitted that such a preliminary objection must rest on agreed facts, raise pure questions of law, and possess the capacity to dispose of the matter entirely or render the application untenable. In essence, the statement underscores the procedural importance of establishing the legal soundness of a preliminary objection before proceeding to the merits of the case. The Petitioner/Applicant relied on the case of Mukisa Biscuit Manufacturers Ltd v West End Distributors Ltd (1969) EA 696 at page 700, where the court stated as follows:“……so far as I am aware, a preliminary objection consists of a pure law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary objection, may dispose of the suit. Examples are objection is in the nature of what used to be a demurrer. It raises a pure point of law, which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.” 30.In Aviation & Allied Workers Union Kenya v Kenya Airways Ltd & 3 Others [2015] KESC 23 (KLR), the Supreme Court held that:“A preliminary objection may only be raised on a pure question of law. To discern such a point of law, the Court has to be satisfied that there is no proper contest as to the facts.” 31.The Respondent submitted that it raised a pure point of law challenging the Court’s jurisdiction, arguing that by filing a Notice of Appeal dated 28th October 2025, the Petitioner/Applicant had already elected to pursue an appeal, thereby forfeiting the right to seek a review in the same Court. This position, supported by the principle in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd(Supra), asserts that any procedural or jurisdictional defect renders a claim untenable. 32.The Respondent further contended that the appeal and review are mutually exclusive remedies; a litigant cannot “sail in two boats at once.” Having chosen the appellate route, the Petitioner is said to have “crossed the Rubicon” and cannot revert to a review application, making the Notice of Motion dated 7th November 2025 legally unsustainable. The Respondent relied on the case of William Karani & 47 others v Wamalwa Kijana & 2 others [1987] KECA 55 (KLR), where the Court of Appeal stated as follows:“Both sections 80 and order XLIV commence by explaining the fundamental nature of review. It is to be a means of curing gross or obvious errors when an appeal is allowed by the Act, from a decree or order, but no appeal has been preferred; and secondly, in cases where no appeal is allowed at all. The broad division then is between the appeal procedure as the general method of curing errors, with its scope to deal with errors of evidential fact or law, or mixed fact and law, and the review procedure, to cure a narrower compass of defects, which cannot be allowed to stand in justice, simply because there is no appeal. From the nature of section 80 and order XLIV, both procedures cannot be adopted at once. Hence, supposing that an appeal is allowed by the Act but has not been preferred, review may be taken, if appropriate. Once an appeal is taken, review is ousted, and the matter to be remedied by review must merge in the appeal. It would not be possible, for example, to pray for review because there was an error on the face of the record, on the grounds that the court had no jurisdiction to pass the decree or order complained of, and then by an appeal complain of misdirections on the evidence. That would be an absurd use of the appeal process, because if the court had no jurisdiction, the misdirections on the evidence would, of course, be unimportant. The proper approach would be to put all the complaints into one appeal.” (emphasis mine). 33.The Respondent emphasized that under section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules, a litigant cannot simultaneously pursue both an appeal and a review of the same judgment. The cases of Martha Wambui v Irene Wanjiru Mwangi & another [2015] KEHC 5616 (KLR) and Gikonyo v Ndura & Another [2025] KEHC 3987 (KLR) reaffirm this principle, holding that once a Notice of Appeal is filed, the right to review is extinguished. The Respondent argued that the Petitioner/Applicant’s attempt to maintain both proceedings constitutes a procedural absurdity and abuse of process. By filing the Notice of Appeal on 28th October 2025, the Petitioner unequivocally chose the appellate route, thereby ousting the jurisdiction of the trial court to entertain any subsequent review application any grievances must now, as a matter of law, merge into the appeal. 34.In Kenya Human Rights Commissions & 8 others v Nchebere; Law Society of Kenya & 2 Others [2025] KEHC 2829 KLR, the court cited the case of Acorn Properties v Issac Gathungu [2021] eKLR Mativo J (as he was then) stated as follows:“The uncompromising manner in which courts have construed the above provisions is evident from the fact that courts have held that even the mere filing of a Notice of Appeal is sufficient to render an application for review incompetent. In this regard, the Court of Appeal in Otieno, Ragot & Company Advocates v National Bank of Kenya Limited [36] said: -‘Section 2(2) of the Court of Appeal Rules defines an appeal to include an intended appeal. The respondent lodged a notice of appeal on 30th August, 2016. The appellant submitted that, though no substantive appeal had been filed, a notice of appeal had been lodged. Mr. Ojuro, on the other hand, submitted that the appeal was intended for part of the ruling and, as such, the law did not bar the respondent from filing for review on the other part of the ruling. A perusal of the notice of appeal indicates that the respondent intended “to appeal to the Court of Appeal on dismissal of the client reference and allowing the advocates reference on taxation.” A careful look at the ruling dated 17th August, 2016, shows that what the respondent intended to appeal against, though phrased as part, was the entire ruling delivered by the learned Judge. It is not permissible to pursue an appeal and an application for review concurrently. If a party chooses to proceed by way of an appeal, he automatically loses the right to ask for a review of the decision sought to be appealed.’” 35.The Respondent argued that the Application for review dated 7th November 2025 is legally untenable, describing it as an impermissible attempt to “take a second bite at the cherry” by pursuing both an appeal and a review simultaneously, an approach the law expressly forbids. 36.The Respondent emphasized that the application for review dated 7th November 2025 is procedurally incompetent, as the Petitioner had already filed a Notice of Appeal on 28th October 2025. Under section 80 of the Civil Procedure Act, Order 45 Rule 1 of the Civil Procedure Rules, and section 74 of the Employment and Labour Relations Court (Procedure) Rules, appeal and review are mutually exclusive remedies. 37.The Respondent relied on Draft and Develop Engineers Ltd v National Water Conservation and Pipeline Corporation (Civil Case No. 11 of 2011), as cited in Joseph Mutegi Kirugi v Attorney General [2019] KEELC 2524 (KLR), to distinguish between a mere erroneous decision and an error apparent on the face of the record. The Respondent argued that the Petitioner/Applicant’s claim of an “erroneous inference” regarding termination is at best a matter of judicial discretion and interpretation, properly reserved for appeal, not review. 38.Consequently, the application is described as frivolous, vexatious, and an abuse of process. Invoking section 12(4) of the Employment and Labour Relations Court Act, the Respondent prays for dismissal with costs, stressing that costs follow the event and that the Petitioner/Applicant’s conduct amounts to “forum shopping”, contrary to the principle of interest reipublicae ut sit finis litium that litigation must come to an end. Analysis and determination 39.The court has considered the application, supporting affidavit, the preliminary objection, replying affidavit, together with the rival submissions on record; the issues for determination are as follows:a.Whether the preliminary objection citing the court as functus officio to this matter is merited.b.If (a) above is in the negative, whether the application for review of the Honourable Court’s judgment is merited? 40.The court reiterates the locus classicus case of Mukisa Biscuit Manufacturers Ltd v West End Distributors Ltd(supra) and Aviation & Allied Workers Union Kenya v Kenya Airways Ltd & 3 Others(Supra), where a preliminary objection raises purely points for law. 41.In Multipurpose Co-operative Society Ltd v Serser & 3 Others [2023] KECA 441 (KLR), the Court of Appeal cited the case of Yani Haryanto v E. D. & F. Man. (Sugar) Limited, Civil Appeal No. 122 of 1992 the Court stated:“The facility of review under Order 44 of the Civil Procedure Rules is available to a person who is aggrieved by an order or decree which is appealable but from which no appeal has been preferred or from which no appeal is allowed, and who from the discovery of new and important matter or evidence or error apparent on the face of the record or for any other sufficient reason, desires to obtain a review. A notice of appeal, apart from manifesting a desire to appeal, appears to have a two-fold purpose; one of the purposes is apparent from the rules that follow up to and including rule 79. The other purpose is to enable the High Court to entertain an application for stay of execution before the appeal is filed...What rule 4(1) of Order 41 of the Civil Procedure Rules prescribes for is an exception to the rule relating to the actual filing of the appeal, which is rule 81(1) of the Court of Appeal Rules. The exception is the deeming of the appeal to be filed for the purposes of rule 4 of Order 41 only on the giving of the notice of appeal. Therefore, despite the lodging of a notice of appeal, the court has jurisdiction to entertain an application for review... An appeal is not instituted in the Court of Appeal until the record of appeal is lodged in its registry, fees paid and security lodged as provided in rule 58 and the inclusion of a memorandum of appeal.” 42.In Daniel Gicheru Kingori & 2 Others v Wambugu [2022] KECA 1168 (KLR) the Court of Appeal cited the case of HA v LB [2022] KEHC 2886 (KLR) where Odunga J (as he then was) stated as follows:“Whereas there is no express bar in the rules to a party who has attempted to review a decision from subsequently appealing against the same, it must be noted that the Rules are subject to the provisions of the Civil Procedure Act under which section 3A empowers the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court. To allow parties who have in the past unsuccessfully attempted to review a decision, to attack the very decision of review on appeal would in my view open several fronts in litigation since the possibility of the applicant also appealing against the decision refusing the review cannot be ruled out. The provisions of order 45 rule 1 are meant to assist genuine litigants and not to assist parties who have deliberately sought whether by evasion or otherwise to obstruct or delay the course of justice. In my considered view the wording of the provisions of order 45 rule 1 are meant to take into account the fact that the said provisions are not restricted to parties to a suit since it talks of “any person considering himself aggrieved”. An aggrieved party may not find the avenue of an appeal feasible and may apply for review without locking out those parties who may wish to pursue an appeal from doing so. But to apply for review with the intention of opening up fresh fronts for litigation on appeal against the order emanating from review and an appeal against the order sought to be reviewed amounts, in my view, to an abuse of the process of the Court. It would also contravene the overriding objective as provided under sections 1A and 1B of the Civil Procedure Act whose aim is the disposal of cases expeditiously and avoidance of multiplicity of proceedings. To find otherwise would amount to giving the court’s seal of approval to persons who wish to play lottery with judicial process. Accordingly, I associate myself with the decision in The Chairman Board of Governors Highway Secondary School v William Mmosi Moi (Supra) that both options cannot be pursued concurrently or one after the other.” 43.The Petitioner/Applicant in this case prays that this Honourable Court be pleased to review and stay execution of its judgment delivered on 24th October 2025, and upon such review, make a finding that the Applicant remains an employee of the Respondent. It is urged that, having been unlawfully and indefinitely suspended, the Applicant ought to be reinstated to his ordinary duties and accorded the full rights, privileges, and benefits of employment. The Respondent, however, has raised a preliminary objection contending that this Court lacks jurisdiction to entertain the application on the ground that the Applicant has already filed a Notice of Appeal, thereby ousting the Court’s jurisdiction under section 16 of the Employment and Labour Relations Court Act and section 74 of the Employment and Labour Relations Court (Procedure) Rules, 2024. 44.The Applicant filed a Notice of Appeal this instance dated 25th October 2025 and thereafter on 7th November 2025 filed this review application. In the case of Otieno Ragot & Company Advocates V National Bank Of Kenya (Supra) the Court of Appeal held that where a party has filed a Notice of Appeal that party has invoked the Appellate jurisdiction and cannot thereafter pursue a review of the same decision.The court emphasized that a litigant must elect between the two remedies because review and appeal are generally mutually exclusive. 45.Also, in Multi Choice Kenya Limited -vs- Wananchi Group Kenya Limited, the court discussed the relationship between review and appeal and reiterated that the two remedies should not be pursued simultaneously. 46.There are conflicting decisions on whether Notice of Appeal bars a litigant from pursuing a review. Some decisions have held that each depends on the issues being litigated at the review. This court is inclined to the dicta that to file the Notice of appeal and review application are mutually exclusive and will not proceed simultaneously. 47.The court will now focus on the application for review in this case. The Application is for stay of execution and then review of the court’s judgment dated 20th October 2024. 48.The Employment and Labour Relations Court Rules 2024 Rule 1 (21) provide that an application for stay of execution pending appeal shall be filed in the appeal file. 49.The Appellant has as a first choice started a process of filing a Notice of Appeal. The stay of execution would best be determined from the Appeal file as provided in the Rules. 50.On review, this court is guided by section 16 of the Employment and Labour Relations Act and Rule 74(1) of the Employment and Labour Relations Court(Procedure) Rules 2024. The grounds for review are as follows:a.if there is discovery of a new and important matter or evidence which, despite 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. 51.In this instant case, this Honourable Court on 24th October 2025 issued the following orders:a.The declaration that the continued suspension for the Petitioner by the Respondent is unfair, unlawful and a violation of the Petitioner’s constitutional right.b.The Petitioner has been out of his job since 2020 August and it is far-fetched to reinstate him to his former employment. This prayer will be declined.c.An order prohibiting the Respondent from any disciplinary measures against the Petitioner in connection with the Petitioner’s trial and eventual acquittal is granted though this seems to be overtaken by events.d.The Respondent to pay general damages equivalent to 10 months’ salary which will cover the constitutional violation as well in prayer (a) above.e.Any unpaid salaries as will be worked out by the parties to also be paid.f.Costs of the suit to be paid to the Petitioner.g.Interest at 14% per annum from date of this judgment on awards granted until full payment. 52.This court considered the evidence soberly and agreed the suspension of Petitioner/Applicant was unfair, unlawful, and in violation of his constitutional rights. There was no mistake or error on the court’s finding. However, with respect to the remedy of reinstatement, the same is discretionary and depends on the peculiar circumstances of each case. 53.In granting reinstatement and especially considering the long period the Petitioner had been out of employment, whether on termination or suspension the fact remains he was out of job for over three(3) years. The court was guided by factors such as employee’s conduct, whether relationship has irretrievably broken down and practibility of such reinstatement in awarding the reliefs so prayed. 54.Further, the court as under Employment and Labour Relations Court Act can order compensation in lieu of reinstatement if it holds that reinstatement is no longer practical. 55.The court ordered the Petitioner be awarded compensation instead of reinstatement. 56.As provided in several case laws, a litigant should prefer an appeal if dissatisfied with the judgment of the court on the grounds of law or facts or both. This was held in the case of National Bank Of Kenya Ltd -vs- Ndungu Njau Civil Appeal No. 211 OF 1996 where court stated that a review cannot correct an erroneous view of the law. The right remedy is appeal. 57.In the case also of Pancras T. Swai -vs Kenya Breweries Limited Civil Appela No. 275 Of 2010 the Court of Appeal held that a review is not an appeal in disguise. An error that required elaborate argument or a different interpretation of law is ordinarily a matter of appeal not review. 58.The court therefore finds the application for review of its judgment and attendant prayer for extension of the stay of execution are not in the purview of this forum. The prayers for review is found not merited in this case and is disallowed. 59.The court orders each party to bear their respective costs of the application.Order accordingly. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAKURU THIS 3RD DAY OF JULY, 2026.ANNA NGIBUINI MWAUREJUDGEOrderIn 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 has 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.A signed copy will be availed to each party upon payment of Court fees.