https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1758

Paluma Engineering Ltd v Thini (Suing as the Representative of the Estate of Henry Thini Wainaina - Deceased) & another (Employment and Labour Relations Appeal E030 of 2024) [2026] KEELRC 1758 (KLR) (25 June 2026) (Ruling) Neutral citation: [2026] KEELRC 1758 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Eldoret Employment and Labour Relations Appeal E030 of 2024 MA Onyango, J June 25, 2026 Between Paluma Engineering Limited Appellant and Joseph Wainaina Thini (Suing as the Representative of the Estate of Henry Thini Wainaina - Deceased) 1st Respondent Intime Contractors Worldwide Limited 2nd Respondent Ruling 1.Judgment in this appeal was delivered on 6th February, 2026. In the Judgment the court dismissed the appeal. 2.This Appellant now seeks review of the appeal vide its application dated 26th February, 2026 on the following grounds:i.That honourable court delivered a judgement on the 6th February 2026 and the Applicant prays for a review of the entire Judgement and orders granted therein;ii.That there is a clear mistake and error that is apparent on the face of the record;iii.That there is a high likelihood that execution might ensue against the Applicant if it is not granted stay of execution of the subordinate court’s decree dated 20th August 2024 pending hearing of the application herein. 3.The application which is filed under Article 50 of the Constitution and Order 22, 45 and 50 of the Civil procedure Rules and all enabling provisions of the law, is based on the grounds that there is an error on the face of the judgment as it is stated therein that the Appellant did not show that it had requested for apportionment of liability between the Appellant and 2nd Respondent in the subordinate court. 4.The Appellant further states that the court held that it had not placed on record the review application filed in the subordinate court and that this court held that the appeal record was incomplete. 5.The Applicant further avers that its Memorandum of Appeal and in its submissions informed the honourable court that it was not a party to and did not participate in the proceedings before the Director of Occupational Safety and Health Services Uasin Gishu County in Claim No. WIBA/ELB/2843. 6.The Applicant further states that it was also not a party to the proceedings before the subordinate court for the adoption of the award and that the proceedings before the subordinate court were ex-parte proceedings filed by the 1st Respondent. The Applicant states that it therefore did not have a chance to take part in the proceedings before the subordinate court because it was not aware of the same until it was served with the order/decree of the subordinate court dated 23rd August 2024. Thus, it could not raise the issue of who was liable between it and the 2md Respondent to pay the award. 7.The Applicant states that it did not appear or participate in any way before the subordinate court, it did not file a review application before the subordinate court and while it applied for typed proceedings of the proceedings that took place on the 20th August 2024 when the award was adopted, no review application had been filed. 8.The Applicant states that the review application mentioned by the honourable court must have been filed by the 2nd Respondent in the subordinate court but the Applicant herein was not aware of it as it had not been served with it and it thus did not participate. The 2nd Respondent did not appear. 9.The Applicant further states that it did not participate in the proceedings before the Director, that Claim No. WIBA/ELB/2843 was issued against the 2nd Respondent on the 10th November 2022. The said award was adopted as an order/decree of the subordinate court on the 20th August 2024 and at this point the name of the Applicant was added as a party/respondent. 10.The Applicant states it was only made aware of the proceedings before the Director of Occupational Safety and Health Services and the award issued on 10th November 2022 when it was served with the order/decree in August 2024, two years after the award had been made and therefore it could not appeal against the award because it was time barred. That its only option was to approach this honourable court. 11.That there is therefore, sufficient reasons for the honourable court to review its judgement and orders herein. 12.That this application has been made without any undue delays and that if the prayers sought herein are not granted the Applicant stands to suffer immense injustice. 13.The application is further supported by the affidavit of Paul Maina Mbugua, in which he reiterates the averments at the foot of the application. 14.The Respondent opposed the application vide a replying affidavit of Joseph Wainaina Thini sworn on 24th April, 2026 in which he states that the application is devoid of merit and amounts to abuse of court process. He prayed that the same be dismissed. 15.The application was disposed of by way of written submissions. 16.In the Applicant’s submissions it submits that it has satisfied the conditions for review under section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules relying on the decision in Republic v Public Procurement Administrative Review Board & 2 others [2018] eKLR where the court stated that:Section 80 gives the power of review and Order 45 sets out the rules. The rules restrict the grounds for review. The rules lay down the jurisdiction and scope of review limiting it to the following grounds;(a)discovery of new and important matter or evidence which after the exercise of due diligence, was not within the knowledge of the applicant or could not be produced by him at the time when the decree was passed or the order made or;(b)on account of some mistake or error apparent on the face of the record, or(c)for any other sufficient reason and whatever the ground there is a requirement that the application has to be made without un reasonable delay. 17.The Applicant further referred to and relied on the decision of Mativo J (as he then was) in Republic v Advocates Disciplinary Tribunal Ex Parte Apollo Mboya [2019] eKLR where the judge set out the principles for review as follows:30.The principles which can be culled out from the above noted authorities are:-i.A court can review its decision on either of the grounds enumerated in Order 45 Rule 1 and not otherwise.ii.The expression "any other sufficient reason" appearing in Order 45 Rule 1 has to be interpreted in the light of other specified grounds.iii.An error which is not self-evident and which can be discovered by a long process of reasoning cannot be treated as an error apparent on the face of record justifying exercise of power under Section 80.iv.An erroneous order/decision cannot be corrected in the guise of exercise of power of review.v.A decision/order cannot be reviewed under Section 80 on the basis of subsequent decision/judgment of a coordinate or larger Bench of the tribunal or of a superior court.vi.While considering an application for review, the court must confine its adjudication with reference to material, which was available at the time of initial decision. The happening of some subsequent event or development cannot be taken note of for declaring the initial order/decision as vitiated by an error apparent.vii.Mere discovery of new or important matter or evidence is not sufficient ground for review. The party seeking review has also to show that such matter or evidence was not within its knowledge and even after the exercise of due diligence, the same could not be produced before the court/tribunal earlier.viii.A mistake or an error apparent on the face of the record means a mistake or an error, which is prima-facie visible and does not require any detail examination. In the present case the petitioner has not been able to point out any error apparent on the face of the record.ix.Section 80 of the Civil Procedure Code provides for a substantive power of review by a civil court and consequently by the appellate courts. The words occurring in Section 80 mean subject to such conditions and limitations as may be prescribed thereof and for the said purpose, the procedural conditions contained in Order 45 Rule 1 must be taken into consideration. Section 80 of the Civil Procedure Code does not prescribe any limitation on the power of the court, but such limitations have been provided for in Order 45 Rule 1.x.The power of a civil court to review its judgment/decision is traceable in Section 80 CPC. The grounds on which review can be sought are enumerated in Order 45 Rule 1. 18.The Applicant submitted that it had demonstrated a necessary reason for review of the court’s judgment and orders, that it has a right to be heard as provided in Article 50(1) of the Constitution and that it is a fundamental principle of the law that no person should be condemned unheard. 19.It further submitted that it stands to suffer immense injustice if its prayers are not granted, that it approached the court without delay and that it has established sufficient reason for review of the court’s judgment. 20.The Respondent in its submissions dated 22nd May, 2026 crystalizes issues for determination in the application to be:a.Whether the Applicant has satisfied the legal threshold for review under Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules;b.Whether the Applicant has demonstrated an error apparent on the face of the record;c.Whether the Applicant has established grounds for grant of stay of execution; and,d.Who should bear costs of the Application. 21.It submits that the law governing review is found at section 80 of the Civil procedure Act and gives grounds for review to be discovery of new and important matter or evidence which despite exercise of due diligence was not within its knowledge; mistake or error apparent on the face of the record; or any other sufficient reason. 22.Citing the case of National Bank of Kenya Limited v Ndungu Njau [1997] eKLR and Republic v Advocates Disciplinary Tribunal Ex Parte Apollo Mboya [2019] eKLR, the Respondent submits that an applicant must satisfy the conditions set out above and that a review is not an appeal in disguise. 23.It is submitted that the Applicant herein merely expresses dissatisfaction with the judgment delivered on 6th February, 2026 and seeks to persuade the court to sit on appeal over its own decision. That the issues raised in the application were fully and conclusively determined in the judgment. 24.It is further submitted that the issues raised as errors on the face of the record being the finding that the record of appeal was incomplete and the observation that the Applicant had not demonstrated that it sought apportionment of liability before the subordinate court are not errors on the face of the record, which must be obvious, self-evident and which do not require lengthy arguments to establish. 25.It is submitted that the Applicant has not established sufficient reason for review, that the Applicant was aware of the Director’s award but failed to challenge the same. That the Applicant cannot circumvent the law through an application for review. That the issues raised were considered by the court in the judgment and cannot be revisited in an application for review. 26.In concluding, the Respondent submits that:a.Any discovery of new and important evidenceb.Any error apparent on the face of the recordc.Any sufficient reason to warrant review of the Judgment delivered on 6th February 2026.d.Any basis for grant of stay of execution. Analysis and Determination 27.Review is provided for in rule 74(1) of the Employment and Labour Relations Court Procedure Rules, 2024 as follows:74.(1)A person who is aggrieved by a decree or an order from which an appeal is allowed but from which no appeal is preferred or from which no appeal is allowed, may within reasonable time, apply for a review of the judgment or ruling—(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. 28.These provisions are similar to those in Order 45 rule 1 of the Civil procedure Rules which provides as follows:[Order 45, rule 1.] Application for review of decree or order.1.(1)Any person considering himself aggrieved—(a)by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or(b)by a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay. 29.In the instant application the Applicant states that there was an error on the face of the record which it refers to as:i.The honourable court while dismissing the Applicant’s appeal noted that the Applicant had not placed on its record of appeal pleadings to show that it had requested the subordinate court to apportion liability between it and the 2nd Respondent;ii.In addition, the honourable court noted that the Applicant had not placed on its record of appeal a review application that had been filed before the subordinate court and thus it was the honourable court's view that the Applicant had filed an incomplete record of appeal and it thus dismissed the Applicant's appeal; 30.The Applicant go on to give a very lengthy explanation of why it could not file the documents. 31.In the first place, the observations by the court are factual. The documents referred to are not on record. The observations of the court were thus not in error. 32.Secondly, the observations do not touch the issues for determination in the appeal which according to the Memorandum of Appeal are that:a.The Learned Trial Magistrate erred in law and in fact by enjoining the Appellant as a 2nd Respondent while adopting the award of the Director of Occupational Safety and Health Services Uasin Gishu County dated 10th November 2022 in Claim No. WIBA/ELB/2843 a claim that the Appellant was not a party tob.The Learned Trial Magistrate erred in law and in fact by ordering the Appellant to pay to Kshs 2,304,000 to the 1st Respondent’s advocates with immediate effect, while the Appellant was not a party and was not mentioned in the Director of Occupational Safety and Health Services Uasin Gishu County award, the subordinate court was adopting. 33.In essence, the issue for determination in the appeal as set out in the submissions of the Appellant in the Memorandum of Appeal was whether the learned trial magistrate erred in law and in fact by joining the Applicant as a 2nd Respondent at the stage of adopting the Director’s award and by ordering the Appellant to pay the award of Kshs. 2,304,000. 34.The issue of apportionment of liability was not raised by the Appellant as an issue for determination in the appeal. The issue of documents missing in the record of appeal was also not for determination. These were peripheral issues which were incidental in the appeal and which did not determine whether or not the appeal succeeds or failed. 35.Error on the face of the record has been defined by courts on numerous occasions. The Applicant in its submissions, referred to the decision in Republic v Advocates Disciplinary Tribunal Ex Parte Apollo Mboya [2019] eKLR where Mativo J (as he then was), observed as follows:20.Review is impermissible without a glaring omission, evident mistake or similar ominous error. An error which has to be established by a long-drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. Where an alleged error is far from self-evident and if it can be established, it has to be established, by lengthy and complicated arguments, such an error cannot be cured by an order or review.21.The power of review is available only when there is an error apparent on the face of the record. I emphasize that review proceedings are not an appeal. The review must be confined to error apparent on the face of the record and re-appraisal of the entire evidence or how the judge applied or interpreted the law would amount to exercise of Appellate Jurisdiction, which is not permissible.[12] 36.The Applicant further referred to and relied on the decision in National Bank of Kenya Limited v Ndungu Njau [1997] eKLR where the Court of Appeal held:16.A review may be granted whenever the court considers that it is necessary to correct an apparent error or omission on the part of the court. The error or omission must be self evident and should not require an elaborate argument to be established. It will not be a sufficient ground for review that another Judge could have taken a different view of the matter. Nor can it be a ground for review that the court proceeded on an incorrect exposition of the law and reached an erroneous conclusion of law. Misconstruing a statute or other provision of law cannot be a ground for review. [Emphasis added] 37.From both decisions, it is clear what constitutes an error apparent on the face of the record. What the Applicant has done in the application is to explain why it was not able to produce the documents that were missing from the record of appeal. That is not an error apparent on the face of the record. Perhaps those explanations would have been relevant where the review is on grounds of new evidence that was not available to the Applicant. 38.Again, as pointed out by the 1st Respondent, the issues raised in the applications are matters that should be raised in an appeal. This court having made the findings in the judgment as it did, the court cannot be asked to review the same. In other words, what the Applicant is saying is that this court erred in determining as it did on the basis of the wrong evidence. These are matters that can only be raised on appeal. 39.For these reasons I find no merit in the application for review, with the result that the application is dismissed with costs. DATED, SIGNED AND DELIVERED VIRTUALLY ON THIS 25TH DAY OF JUNE, 2026M. ONYANGOJUDGE