Simiyu v Buke Tours & Safaris Ltd & another (Employment and Labour Relations Cause E025 of 2023) [2026] KEELRC 1759 (KLR) (26 June 2026) (Ruling)

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI** **ELRC CAUSE NO E025 OF 2023** **EMMANUEL SIKUKU SIMIYU…..…………………………….CLAIMANT** **VERSUS** **BUKE TOURS & SAFARIS LIMITED...………….…….1ST RESPONDENT** **BUCKNER KENYA..…………………………..………….2ND RESPONDENT** **RULING** **Background** 1. The court delivered judgment in this matter on 10th July 2025 and, inter alia, found that the Respondents had improperly terminated the Claimant’s contract of service. Consequently, it granted the Claimant various reliefs including an order for compensation for unfair termination of his contract in the sum of Ksh. 288,000.00. 2. The Respondents have now filed two applications dated 18th August 2025 and 9th September 2025 seeking the following orders:- 3. That the court stays execution of the judgment. 4. That the court reviews the judgment in view of new material evidence which has come to their (the Respondents’) attention. 5. That the court sets off the following amounts from the decretal sum:- 6. The sum of Ksh. 40,000.00 allegedly paid to the Claimant by one of the Respondents’ clients. 7. The sum of Ksh. 55,000.00 to cover the value of a laptop which the Claimant allegedly did not surrender back to the Respondents. 8. The sum of Ksh. 280,746.36 being the balance of a Sacco loan which the Claimant allegedly borrowed from Buckner Sacco Society Limited. 9. The applications are supported by the grounds which are set out on the faces of the motions. They are also anchored on the supporting affidavits filed with them. 10. The affiant to the affidavits asserts that the Claimant was issued with a cheque for Ksh. 40,000.00 on behalf of the Respondents but kept the money. She alleges that the amount was meant to refund the Respondents for works which were not undertaken. 11. The affiant further asserts that during the course of the employment relationship between the Claimant and the Respondents, he was allocated a work laptop valued at Ksh. 55,000.00. However, she asserts that he did not surrender the laptop back to the Respondents when his services were terminated. As such, she prays for an order to recover the value of the laptop from the decretal sum. 12. The affiant also asserts that the Claimant borrowed the sum of Ksh. 300,000.00 from Buckner Sacco Society Limited but is yet to repay Ksh. 280,746.36 being the balance of the loan amount. She contends that the loan was to have been recovered through the Claimant’s salary. 13. The Claimant has opposed the applications. He denies that the Respondents issued him with a work laptop as alleged by them. He also denies that the Respondents’ client issued him with a cheque for Ksh. 40,000.00 as a refund to the Respondents. He further contends that the loan in question was granted by a separate legal entity which is not party to this action. As such, he asserts that it is improper for the Respondents to drag the loan issue into this cause particularly after the matter has been heard and concluded. 14. The Claimant asserts that the instant applications have been filed as an afterthought. He argues that the motions are an abuse of the court process which are intended to frustrate his efforts to recover the decretal sum in the suit. **Analysis** 1. The application dated 9th September 2025 invites the court to review its judgment in order to infuse in it (the judgment) a set-off for the various amounts which are set out above. In essence and by the aforesaid motion, the Respondents are inviting the court to enter judgment in their favour after the fact on account of the proposed set-off. 2. Black’s Law Dictionary defines the term ‘’set-off’’ to mean:- *‘’A defendant’s counter demand against the plaintiff arising out of a transaction independent of the plaintiff’s claim….* *…..a mode of defense by which the defendant acknowledges the justice of the plaintiff’s demand but sets up a demand of his own against the plaintiff to counter balance it either in whole or in part…..* *……a counter demand generally of a liquidated debt growing out of an independent transaction for which an action might be maintained by the defendant against the plaintiff.’’* 1. On the other hand, the same dictionary defines the term ‘’counter-claim’’ to mean:- *‘’A claim for relief asserted against an opposing party after an original claim has been made especially a defendant’s claim in opposition to or as a set-off against the plaintiff’s claim.’’* 1. From this definition, it is apparent that a set-off is a claim by a defendant against a plaintiff in the same suit. It is in the nature of a counter-claim. 2. The term ‘’set-off’’ is often used to refer to a liquidated counter-claim. On the other hand, the phrase ‘’counter-claim’’ encompasses all cross claims by a defendant, whether liquidated or unliquidated. As such, a set-off is technically a subset of a counter-claim. 3. The law stipulates the manner in which a defendant may introduce and prosecute a set-off or counter-claim in a suit. Although the two are introduced as part of a Statement of Defense in an action, they are nevertheless deemed as stand-alone claims which are independent of the original claim by the plaintiff (***Ocean Engineering Works Ltd & another v SBM Bank of Kenya Ltd [2024] KEELC 4724 (KLR)***). 4. Order 7 of *the Civil Procedure Rules* provides for the way in which a counter-claim or set-off may be instituted. It provides, inter alia, thus:- 5. *A defendant in a suit may set-off, or set-up by way of counterclaim against the claims of the plaintiff, any right or claim, whether such set-off or counterclaim sound in damages or not, and whether it is for a liquidated or unliquidated amount, and such set-off or counterclaim shall have the same effect as a cross-suit, so as to enable the court to pronounce a final judgment in the same suit, both on the original and on the cross-claim; but the Court may on the application of the plaintiff before trial, if in the opinion of the court such set-off or counterclaim cannot be conveniently disposed of in the pending suit, or ought not to be allowed, refuse permission to [the] defendant to avail himself thereof.* 6. *Where any defendant seeks to rely upon any grounds as supporting a right of counterclaim, he shall, in his statement of defense, state specifically that he does so by way of counterclaim.* 7. *Where a defendant by his defense sets up any counterclaim which raises questions between himself and the plaintiff, together with any other person or persons, he shall add to the title of his defense a further title similar to the title in a plaint, setting forth the names of all persons who, if such counterclaim were to be enforced by cross-action, would be defendants to such cross-action, and shall deliver to the court his defense for service on such of them as are parties to the action together with his defense for service on the plaintiff within the period within which he is required to file his defense.* 8. *Any person named in a defense as a party to a counterclaim thereby made may, unless some other or further order is made by the court, deliver a reply within fifteen days after service upon him of the counterclaim and shall serve a copy thereof on all parties to the suit.* 9. On the other hand, rule 29 (1) & (2) of *the Employment and Labour Relations Court (Procedure) Rules, 2024*, inter alia, speak to the matter of counter-claim in the following manner:- 10. *If a party served with a statement of claim intends to respond, the party shall, within twenty-eight days from the date of service (or such shorter time as the Court may direct in urgent matters for reasons given in writing), enter appearance and file and serve a response to the claim.* 11. *A respondent’s statement of response shall contain…..a counterclaim….* 12. From the foregoing, it is apparent that a defendant who wishes to set up a counter-claim or set-off must specifically plead the set-off or counter-claim in the Statement of Defense. This is in recognition of the fact that, like the original suit, the counter-claim or set-off, being a separate suit, is subject to the same rules that govern the primary suit. It (the counter-claim or set-off) must be expressly pleaded and the defendant must tender evidence to establish it. As such, it (a set-off or counter-claim) cannot be introduced in a suit after the trial has been concluded and judgment delivered under the guise of an application for review. 13. Speaking to this, the court in the Nigerian case of ***Prime Merchant Bank Ltd. v. Man- Mountain Co. Suit No. CA/L/93/97; (2000) 6 N.W.L.R*** stated as follows:- *‘’It is trite law that a counterclaim is a separate action, which should stand or fall on its own merits. In other words, the claims in a counterclaim should receive the same treatment as the main action. Pleadings should be filed and evidence led to substantiate the claims of the defendant in his counterclaim. It needs to be proved distinctly…’’* 1. A perusal of the Statement of Defense in the suit before me discloses that the Respondents did not plead a counter-claim or set-off for the amounts they now seek to offset from the decretal sum in the suit. The claims in the application, having not been pleaded by way of set-off or counter-claim, were not subjected to the usual trial process. 2. The Claimant did not have an opportunity to speak to them at the trial since he had no notice that the Respondents proposed to pursue recovery of the impugned amounts from him. He was not served with a Statement of Defense with a set-off or counter-claim to enable him to file a defense, if any, to the set-off or counter-claim. He did not cross-examine the Respondents’ witnesses on the veracity of the purported claims as they were not pleaded as set-offs or counter-claims. 3. Since the claims were neither pleaded nor proved at the stage of trial, they cannot be introduced in the cause at the post judgment stage under the guise of review. To do so will deprive the Claimant of the opportunity to challenge them (the claims) through the rigors of cross-examination. That will be tantamount to trial by ambush. 4. The Respondents’ counsel contends that the Respondents tendered evidence to demonstrate that the Claimant received a refund of Ksh. 40,000.00 from their client. However, she contends that the court overlooked the evidence and omitted to offset the amount from the compensation it awarded the Claimant. 5. This contention is misleading. The court could not have set-off the aforesaid amount from the decretal sum in the absence of a counter-claim or set-off plea in the Statement of Defense. To do otherwise will be tantamount to granting reliefs which are not supported by the pleadings which is contrary to the well-established legal principle that cases should be decided based on the pleadings on record. 6. Apart from the foresaid, it is apparent that the loan which the Respondents seek to recover through this action was granted by Buckner Sacco Society Limited, a separate and distinct legal entity from them. As the record shows, this entity was not a party to the action. As such, the Respondents cannot seek to enforce recovery of the impugned loan on its (Buckner Sacco Society Limited) behalf through these proceedings under the guise of a review application. 7. In the supplementary affidavit dated 30th January 2026, the Respondents assert that the Claimant has proclaimed motor vehicles which belong to third parties. As such, they seek stay of the alleged attachment. Yet, no objections proceedings have been commenced by the owners of the impugned motor vehicles. 8. The Respondents’ averments in the supplementary affidavit on the aforesaid motor vehicles are a clear departure from the tenor of the applications dated 18th August 2025 and 9th September 2025. This is because the two applications did not seek to introduce objection proceedings in the cause. 9. If it is indeed true that the two motor vehicles are owned by non-parties to the suit, objection proceedings may be validly instituted to challenge the attachment. However, this can only be done by the alleged owners of the vehicles and not the Respondents. 10. The Respondents further allege that the Claimant has proclaimed assorted pieces of furniture which belong to a non-party to the suit and the 2nd Respondent. Yet the award was against the 1st Respondent. As such, they urge the court to declare the attachment irregular. 11. However, this is not part of the Respondents’ case and plea in the two applications on record. The issue just sprung up in the supplementary affidavit. 12. Importantly, despite this bare assertion, the Respondents did not provide evidence to demonstrate that the impugned furniture belongs to a third party and the 2nd Respondent. That being the case, the court has no credible basis upon which it can declare that the proclaimed furniture belongs to a third party and the 2nd Respondent. 13. That said, the Claimant and the individuals who are assisting him to enforce the court decree must appreciate that the court judgment is not a license for them to go on an attachment spree by attaching property which does not belong to the 1st Respondent. They must appreciate that they owe third parties a duty of care not to attach their properties under the guise of enforcing the judgment against the 1st Respondent. They (the Claimant and his agents) must be alive to the fact that they are personally responsible for any maleficence which may arise from the execution process. 14. As the court record shows, the application dated 18th August 2025 sought to stay execution of the court’s judgment pending disposal of the application for review dated 9th September 2025. Since the request for review has been declined, it follows that the application for stay of execution must also fail. **Determination** 1. The upshot is that the court finds that the two applications dated 18th August 2025 and 9th September 2025 are without merit. 2. As such, they are dismissed. 3. Each party to bear own costs of the applications. **Dated, signed and delivered on the 26th day of June, 2026** **B. O. M. MANANI** **JUDGE** In the presence of: …………….for the Claimant …………….for the Respondents **ORDER** **In light of the directions issued on 12th July 2022 by her Ladyship, the Chief Justice with respect to online court proceedings, this decision has been delivered to the parties online with their consent, the parties having waived compliance with Rule 28 (3) of the ELRC Procedure Rules which requires that all judgments and rulings shall be dated, signed and delivered in the open court.** **B. O. M MANANI**