1. This ruling relates to the Respondent/Applicant’s Notice of Motion application dated 4th November, 2025, made pursuant to Rule 74 of the Employment and Labour Relations Court (Procedure) Rules, 2024, Sections 80, IA, 1B, 3A of the Civil Procedure Act, Chapter 21 Laws of Kenya, Order 40, 45 Rules 1,2,3(2), and 51 Rule I of the Civil Procedure Rules, 2010, wherein it seeks the following reliefs: -
i. Spent
ii. Spent
iii. THAT this Honourable court be pleased to review and set aside the judgment delivered by Hon. Lady Justice Stella Rutto on 21st October 2025 in MILIMANI ELRC CLAIM No. E044 of 2025: EURRY S. MABONGA VERSUS AGRICULTURAL FINANCE CORPORATION, limited to the computation of the Non-Practicing Allowance awarded to the Claimant.
iv. THAT this Honourable court be pleased to review the judgement delivered by Hon. Lady Justice Stella Rutto on 2lst October 2025 in MILIMANI ELRC. CLAIM No. E044 OF 2025: EURRY S. MABONGA VERSUS AGRICULTURAL FINANCE CORPORATION, and substitute the award of Kshs. 2,640,000 with the correct computation of Kshs. 1,460,000 in accordance with circular No. MSPS. 10/145A VoL. Vll/40 on Non- Practicing Allowance for Legal Officers.
v. THAT the costs of this application be provided for.
2. The application is supported by grounds on the face thereof and the affidavit sworn on 4th November, 2025, by Lydia Mutembete, the Ag. Head of Human Capital of the Respondent/Applicant.
3. The Applicant states that on 21st October 2025, the Court delivered judgment in Milimani ELRC Claim No. E044 of 2025, Eurry S. Mabonga v Agricultural Finance Corporation. wherein, it awarded the Claimant Kshs. 2,640,000 as Non-Practicing Allowance, calculated at Kshs. 30,000 per month for 88 months, together with other reliefs granted by the Court.
4. It is its position that upon a careful review of the judgment, it discovered an error apparent on the face of the record, specifically, that the Court applied a Non-Practicing Allowance rate of Kshs.30,000 per month, whereas that was not the rate applicable to the Claimant’s grade and designation.
5. The Applicant contends that the award was therefore calculated using an incorrect rate, resulting in an erroneous computation of the amount due to the Claimant. The Applicant further avers that it is on that basis that it now seeks a review and correction of the judgment to reflect the allowance rate applicable to the Claimant’s actual grade and designation.
6. The Applicant avers that the correct rates of Non-Practicing Allowance payable to Legal Officers in the public service are prescribed under Circular Reference No. MSPS.10/145A Vol. VII/40 dated 11 June 2010, issued by the Permanent Secretary, Office of the Prime Minister, Ministry of State for Public Service. According to the Applicant, the applicable allowance rates are expressly provided in that circular and vary depending on the officer’s grade and designation.
7. The Applicant therefore contends that the Court’s application of a rate of Kshs. 30,000 per month was inconsistent with the rates stipulated in the circular and led to an erroneous computation of the award.
8. It is the Applicant’s position that the Circular does not provide for a rate of Kshs. 30,000 per month for any of the grades specified therein, and that the Court inadvertently applied a rate not contemplated under the applicable Government policy framework, resulting in an error apparent on the face of the record and an incorrect computation of the award for Non-Practicing Allowance.
9. The Applicant contends that, upon applying the correct rates of Non-Practicing Allowance prescribed under Circular Reference No. MSPS.10/145A Vol. VII/40 dated 11 June 2010, the Claimant’s entitlement ought to have been computed at Kshs. 1,460,000. It argues that the Court’s award of Kshs. 2,640,000, based on a rate of Kshs. 30,000 per month resulted in an overstatement of the amount payable.
10. It is the Applicant’s assertion that the difference between the amount correctly payable and the amount awarded is Kshs. 1,180,000, which constitutes an excess award arising from an error apparent on the face of the record.
11. Consequently, the Applicant seeks a review of the judgment to correct the computation and align the award with the rates stipulated in the applicable Government circular.
12. The Claimant/Respondent opposed the motion vide a Replying affidavit sworn on 21st November, 2025. He contends that the application is, in substance, an improper attempt by the Respondent to re-open and re-litigate issues that were neither contested during the hearing nor left unresolved by the Court.
13. The Claimant maintains that the matters raised in the application were conclusively determined in the judgment and cannot properly be revisited through review proceedings.
14. The Claimant further avers that, both in its pleadings and during the hearing, the Respondent expressly acknowledged that the issue of Non-Practice Allowance was not in dispute, having stated that “the issue of non-practice allowance is uncontested because the Court of Appeal has made a pronouncement on it.” Consequently, the Claimant argues that the Respondent cannot now seek to challenge the basis upon which the Court made its determination after having admitted the claim and elected not to contest it during the trial.
15. It is the Claimant’s assertion that there are two relevant Government circulars governing the payment of Non-Practice/Prosecutorial Allowance, namely Circular No. MSPS.10/145A Vol. VII/40 dated 11 June 2010; and Circular No. MSP No. 5A Vol. III (78) dated 9 October 2012. According to the Claimant, the Respondent has selectively relied on the 2010 Circular while deliberately disregarding the subsequent 2012 Circular, which also regulates the payment of Non-Practice/Prosecutorial Allowance.
16. The Claimant therefore asserts that the Respondent’s computation is incomplete and misleading, as it fails to take into account the provisions of the latter circular.
17. The Claimant further avers that Circular No. MSP No. 5A Vol. III (78) dated 9th October 2012 approved revised rates of Non-Practice/Prosecutorial Allowance for legal personnel in the public service, effective 1 October 2012.
18. The Claimant contends that these revised rates superseded the earlier rates relied upon by the Respondent and formed the applicable framework governing payment of Non-Practice/Prosecutorial Allowance to legal officers in the public service from 1st October 2012.
19. The Claimant therefore maintains that the Court's adoption of a rate of Kshs. 30,000 per month was consistent with the applicable circular and cannot be said to constitute an error apparent on the face of the record. Consequently, the Claimant argues that the Respondent's application is not aimed at correcting an obvious error but rather seeks to challenge the merits of the Court's determination through a review process, contrary to the law governing review of judgments.
20. The Claimant further relies on the 2010 and 2012 Government circulars on Non-Practice/Prosecutorial Allowance, particularly the 2012 Circular which provides for a rate of Kshs. 30,000 per month for officers in grades SLG 1–SLG 5. He maintains that the applicability of these circulars to all public service legal officers was settled by the ELRC and subsequently affirmed by the Court of Appeal in Civil Appeal No. E216 of 2020.
21. The Claimant asserts that the Court’s award was consistent with the applicable legal framework and binding precedent, and contends therefore that there is no error apparent on the face of the record and that the Respondent is improperly seeking a review of the merits of the judgment rather than correction of an obvious mistake.
22. The Claimant maintains that the Court correctly found the claim for Non-Practice Allowance to be uncontested and entered judgment on that basis, as well as in accordance with binding Court of Appeal authority that had already settled the issue. He therefore argues that there is no error apparent on the face of the record warranting review.
23. The Claimant further contends that the Respondent has failed to demonstrate any of the grounds for review prescribed under Rule 33(1) of the Employment and Labour Relations Court (Procedure) Rules, 2016, and is therefore not entitled to the relief sought.
24. According to the Claimant, the review jurisdiction of the Court is not intended to rescue a party from the consequences of its own litigation choices or to permit a party to withdraw admissions made during the hearing. He argues that the Respondent is attempting to use the review process to revisit issues it deliberately chose not to contest at trial.
25. The Claimant also asserts that the application is moot and devoid of merit because he has already lodged an appeal against the judgment. In his view, the filing of the appeal further demonstrates that the issues raised by the Respondent are matters for appellate consideration rather than review, and the application should therefore be dismissed with costs.
26. Parties canvassed the application by way of written submissions, which have been duly considered.
Analysis and Determination
27. The sole issue that arises for determination is whether the Respondent/Applicant has satisfied the legal threshold for review of the judgment delivered on 21st October 2025, particularly with respect to the award of Kshs. 2,640,000 as Non-Practicing Allowance.
28. The power of this Court to review its judgments is donated by Section 16 of the Employment and Labour Relations Court Act and Rule 74 of the Employment and Labour Relations Court (Procedure) Rules, 2024.
29. A review is only granted where there is discovery of new and important evidence which, despite due diligence, was not within the applicant's knowledge at the time of the hearing, where there is a mistake or error apparent on the face of the record, where the judgment requires clarification, or for any other sufficient reason.
30. In National Bank of Kenya Ltd v Ndungu Njau [1997] eKLR, the Court of Appeal held that:-
“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.”
31. The Applicant's case is that the Court applied an incorrect monthly rate of Kshs. 30,000 in calculating Non-Practicing Allowance, and that the applicable rate under Circular No. MSPS.10/145A Vol. VII/40 dated 11th June 2010 would have yielded an award of Kshs. 1,460,000. It therefore urges the Court to review the judgment on the ground of an error apparent on the face of the record.
32. The difficulty in my view with the Applicant's position is that the alleged error is neither obvious nor self-evident from the judgment itself. Determining whether the Court applied the wrong rate requires examination of competing Government circulars, interpretation of their applicability, consideration of the Claimant's grade, and analysis of judicial pronouncements concerning the scope and effect of those circulars. Such an inquiry, in my view, transcends the narrow confines of review jurisdiction and enters the realm of an appeal as correctly submitted by the Claimant.
33. Further, the Claimant has demonstrated that there existed not only the 2010 Circular relied upon by the Applicant, but also Circular No. MSP No. 5A Vol. III (78) dated 9th October 2012, which revised the rates payable to legal officers and provided for payment of Kshs. 30,000 per month for officers in grades SLG 1–SLG 5. The Claimant further points to judicial pronouncements of the Employment and Labour Relations Court and the Court of Appeal affirming the applicability of those circulars to legal officers in the public service.
34. Whether the Court correctly interpreted and applied those circulars is, in my view, a matter requiring substantive legal argument and evaluation of evidence. Such a contest cannot properly be characterized as an "error apparent on the face of the record."
35. In Pancras T. Swai v Kenya Breweries Ltd [2014] eKLR, the Court of Appeal held that where an alleged error requires extensive argument or where two possible opinions exist, the matter falls outside the court's review jurisdiction and lies within the province of an appeal.
36. The record further reveals that the Respondent expressly indicated during the hearing that the issue of Non-Practice Allowance was uncontested because the Court of Appeal had already pronounced itself on the matter. The Respondent did not file evidence challenging the applicable rate, did not dispute the quantum claimed, and did not place before the Court an alternative computation. Having elected not to contest the issue at trial, the Respondent cannot now invoke review proceedings to introduce arguments and computations that could and ought to have been advanced before judgment.
37. The Court of Appeal in National Bank of Kenya Ltd v Ndungu Njau (supra), cautioned that review is not available to enable a party to re-argue its case or repair omissions in the conduct of litigation.
38. In my considered view, what the Applicant seeks herein is a reconsideration of the Court's interpretation and application of the law governing Non-Practicing Allowance, which is a matter for appeal, and not review.
39. In the upshot, I find and hold that the Applicant has not demonstrated any clerical mistake, accidental slip, arithmetic miscalculation apparent on the face of the judgment, discovery of new evidence, or any other sufficient reason warranting review of the judgment of the court.
40. The Notice of Motion dated 4th November 2025 is therefore without merit and is dismissed with costs to the Claimant/Respondent.
41. Orders of the Court.
SIGNED, DATED, AND DELIVERED BY VIDEO-LINK AND IN COURT AT NAIROBI THIS 19TH DAY OF JUNE, 2026.
Appearance:
Mr. Mabonga the Claimant present in person.
Mr. Nyakundi h/b for Mr. Wanyama for the Respondent/Applicant
Ms. Esther -C/A
i. Spent
ii. Spent
iii. THAT this Honourable court be pleased to review and set aside the judgment delivered by Hon. Lady Justice Stella Rutto on 21st October 2025 in MILIMANI ELRC CLAIM No. E044 of 2025: EURRY S. MABONGA VERSUS AGRICULTURAL FINANCE CORPORATION, limited to the computation of the Non-Practicing Allowance awarded to the Claimant.
iv. THAT this Honourable court be pleased to review the judgement delivered by Hon. Lady Justice Stella Rutto on 2lst October 2025 in MILIMANI ELRC. CLAIM No. E044 OF 2025: EURRY S. MABONGA VERSUS AGRICULTURAL FINANCE CORPORATION, and substitute the award of Kshs. 2,640,000 with the correct computation of Kshs. 1,460,000 in accordance with circular No. MSPS. 10/145A VoL. Vll/40 on Non- Practicing Allowance for Legal Officers.
v. THAT the costs of this application be provided for.
2. The application is supported by grounds on the face thereof and the affidavit sworn on 4th November, 2025, by Lydia Mutembete, the Ag. Head of Human Capital of the Respondent/Applicant.
3. The Applicant states that on 21st October 2025, the Court delivered judgment in Milimani ELRC Claim No. E044 of 2025, Eurry S. Mabonga v Agricultural Finance Corporation. wherein, it awarded the Claimant Kshs. 2,640,000 as Non-Practicing Allowance, calculated at Kshs. 30,000 per month for 88 months, together with other reliefs granted by the Court.
4. It is its position that upon a careful review of the judgment, it discovered an error apparent on the face of the record, specifically, that the Court applied a Non-Practicing Allowance rate of Kshs.30,000 per month, whereas that was not the rate applicable to the Claimant’s grade and designation.
5. The Applicant contends that the award was therefore calculated using an incorrect rate, resulting in an erroneous computation of the amount due to the Claimant. The Applicant further avers that it is on that basis that it now seeks a review and correction of the judgment to reflect the allowance rate applicable to the Claimant’s actual grade and designation.
6. The Applicant avers that the correct rates of Non-Practicing Allowance payable to Legal Officers in the public service are prescribed under Circular Reference No. MSPS.10/145A Vol. VII/40 dated 11 June 2010, issued by the Permanent Secretary, Office of the Prime Minister, Ministry of State for Public Service. According to the Applicant, the applicable allowance rates are expressly provided in that circular and vary depending on the officer’s grade and designation.
7. The Applicant therefore contends that the Court’s application of a rate of Kshs. 30,000 per month was inconsistent with the rates stipulated in the circular and led to an erroneous computation of the award.
8. It is the Applicant’s position that the Circular does not provide for a rate of Kshs. 30,000 per month for any of the grades specified therein, and that the Court inadvertently applied a rate not contemplated under the applicable Government policy framework, resulting in an error apparent on the face of the record and an incorrect computation of the award for Non-Practicing Allowance.
9. The Applicant contends that, upon applying the correct rates of Non-Practicing Allowance prescribed under Circular Reference No. MSPS.10/145A Vol. VII/40 dated 11 June 2010, the Claimant’s entitlement ought to have been computed at Kshs. 1,460,000. It argues that the Court’s award of Kshs. 2,640,000, based on a rate of Kshs. 30,000 per month resulted in an overstatement of the amount payable.
10. It is the Applicant’s assertion that the difference between the amount correctly payable and the amount awarded is Kshs. 1,180,000, which constitutes an excess award arising from an error apparent on the face of the record.
11. Consequently, the Applicant seeks a review of the judgment to correct the computation and align the award with the rates stipulated in the applicable Government circular.
12. The Claimant/Respondent opposed the motion vide a Replying affidavit sworn on 21st November, 2025. He contends that the application is, in substance, an improper attempt by the Respondent to re-open and re-litigate issues that were neither contested during the hearing nor left unresolved by the Court.
13. The Claimant maintains that the matters raised in the application were conclusively determined in the judgment and cannot properly be revisited through review proceedings.
14. The Claimant further avers that, both in its pleadings and during the hearing, the Respondent expressly acknowledged that the issue of Non-Practice Allowance was not in dispute, having stated that “the issue of non-practice allowance is uncontested because the Court of Appeal has made a pronouncement on it.” Consequently, the Claimant argues that the Respondent cannot now seek to challenge the basis upon which the Court made its determination after having admitted the claim and elected not to contest it during the trial.
15. It is the Claimant’s assertion that there are two relevant Government circulars governing the payment of Non-Practice/Prosecutorial Allowance, namely Circular No. MSPS.10/145A Vol. VII/40 dated 11 June 2010; and Circular No. MSP No. 5A Vol. III (78) dated 9 October 2012. According to the Claimant, the Respondent has selectively relied on the 2010 Circular while deliberately disregarding the subsequent 2012 Circular, which also regulates the payment of Non-Practice/Prosecutorial Allowance.
16. The Claimant therefore asserts that the Respondent’s computation is incomplete and misleading, as it fails to take into account the provisions of the latter circular.
17. The Claimant further avers that Circular No. MSP No. 5A Vol. III (78) dated 9th October 2012 approved revised rates of Non-Practice/Prosecutorial Allowance for legal personnel in the public service, effective 1 October 2012.
18. The Claimant contends that these revised rates superseded the earlier rates relied upon by the Respondent and formed the applicable framework governing payment of Non-Practice/Prosecutorial Allowance to legal officers in the public service from 1st October 2012.
19. The Claimant therefore maintains that the Court's adoption of a rate of Kshs. 30,000 per month was consistent with the applicable circular and cannot be said to constitute an error apparent on the face of the record. Consequently, the Claimant argues that the Respondent's application is not aimed at correcting an obvious error but rather seeks to challenge the merits of the Court's determination through a review process, contrary to the law governing review of judgments.
20. The Claimant further relies on the 2010 and 2012 Government circulars on Non-Practice/Prosecutorial Allowance, particularly the 2012 Circular which provides for a rate of Kshs. 30,000 per month for officers in grades SLG 1–SLG 5. He maintains that the applicability of these circulars to all public service legal officers was settled by the ELRC and subsequently affirmed by the Court of Appeal in Civil Appeal No. E216 of 2020.
21. The Claimant asserts that the Court’s award was consistent with the applicable legal framework and binding precedent, and contends therefore that there is no error apparent on the face of the record and that the Respondent is improperly seeking a review of the merits of the judgment rather than correction of an obvious mistake.
22. The Claimant maintains that the Court correctly found the claim for Non-Practice Allowance to be uncontested and entered judgment on that basis, as well as in accordance with binding Court of Appeal authority that had already settled the issue. He therefore argues that there is no error apparent on the face of the record warranting review.
23. The Claimant further contends that the Respondent has failed to demonstrate any of the grounds for review prescribed under Rule 33(1) of the Employment and Labour Relations Court (Procedure) Rules, 2016, and is therefore not entitled to the relief sought.
24. According to the Claimant, the review jurisdiction of the Court is not intended to rescue a party from the consequences of its own litigation choices or to permit a party to withdraw admissions made during the hearing. He argues that the Respondent is attempting to use the review process to revisit issues it deliberately chose not to contest at trial.
25. The Claimant also asserts that the application is moot and devoid of merit because he has already lodged an appeal against the judgment. In his view, the filing of the appeal further demonstrates that the issues raised by the Respondent are matters for appellate consideration rather than review, and the application should therefore be dismissed with costs.
26. Parties canvassed the application by way of written submissions, which have been duly considered.
Analysis and Determination
27. The sole issue that arises for determination is whether the Respondent/Applicant has satisfied the legal threshold for review of the judgment delivered on 21st October 2025, particularly with respect to the award of Kshs. 2,640,000 as Non-Practicing Allowance.
28. The power of this Court to review its judgments is donated by Section 16 of the Employment and Labour Relations Court Act and Rule 74 of the Employment and Labour Relations Court (Procedure) Rules, 2024.
29. A review is only granted where there is discovery of new and important evidence which, despite due diligence, was not within the applicant's knowledge at the time of the hearing, where there is a mistake or error apparent on the face of the record, where the judgment requires clarification, or for any other sufficient reason.
30. In National Bank of Kenya Ltd v Ndungu Njau [1997] eKLR, the Court of Appeal held that:-
“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.”
31. The Applicant's case is that the Court applied an incorrect monthly rate of Kshs. 30,000 in calculating Non-Practicing Allowance, and that the applicable rate under Circular No. MSPS.10/145A Vol. VII/40 dated 11th June 2010 would have yielded an award of Kshs. 1,460,000. It therefore urges the Court to review the judgment on the ground of an error apparent on the face of the record.
32. The difficulty in my view with the Applicant's position is that the alleged error is neither obvious nor self-evident from the judgment itself. Determining whether the Court applied the wrong rate requires examination of competing Government circulars, interpretation of their applicability, consideration of the Claimant's grade, and analysis of judicial pronouncements concerning the scope and effect of those circulars. Such an inquiry, in my view, transcends the narrow confines of review jurisdiction and enters the realm of an appeal as correctly submitted by the Claimant.
33. Further, the Claimant has demonstrated that there existed not only the 2010 Circular relied upon by the Applicant, but also Circular No. MSP No. 5A Vol. III (78) dated 9th October 2012, which revised the rates payable to legal officers and provided for payment of Kshs. 30,000 per month for officers in grades SLG 1–SLG 5. The Claimant further points to judicial pronouncements of the Employment and Labour Relations Court and the Court of Appeal affirming the applicability of those circulars to legal officers in the public service.
34. Whether the Court correctly interpreted and applied those circulars is, in my view, a matter requiring substantive legal argument and evaluation of evidence. Such a contest cannot properly be characterized as an "error apparent on the face of the record."
35. In Pancras T. Swai v Kenya Breweries Ltd [2014] eKLR, the Court of Appeal held that where an alleged error requires extensive argument or where two possible opinions exist, the matter falls outside the court's review jurisdiction and lies within the province of an appeal.
36. The record further reveals that the Respondent expressly indicated during the hearing that the issue of Non-Practice Allowance was uncontested because the Court of Appeal had already pronounced itself on the matter. The Respondent did not file evidence challenging the applicable rate, did not dispute the quantum claimed, and did not place before the Court an alternative computation. Having elected not to contest the issue at trial, the Respondent cannot now invoke review proceedings to introduce arguments and computations that could and ought to have been advanced before judgment.
37. The Court of Appeal in National Bank of Kenya Ltd v Ndungu Njau (supra), cautioned that review is not available to enable a party to re-argue its case or repair omissions in the conduct of litigation.
38. In my considered view, what the Applicant seeks herein is a reconsideration of the Court's interpretation and application of the law governing Non-Practicing Allowance, which is a matter for appeal, and not review.
39. In the upshot, I find and hold that the Applicant has not demonstrated any clerical mistake, accidental slip, arithmetic miscalculation apparent on the face of the judgment, discovery of new evidence, or any other sufficient reason warranting review of the judgment of the court.
40. The Notice of Motion dated 4th November 2025 is therefore without merit and is dismissed with costs to the Claimant/Respondent.
41. Orders of the Court.
SIGNED, DATED, AND DELIVERED BY VIDEO-LINK AND IN COURT AT NAIROBI THIS 19TH DAY OF JUNE, 2026.
C. N. BAARI
JUDGE
Appearance:
Mr. Mabonga the Claimant present in person.
Mr. Nyakundi h/b for Mr. Wanyama for the Respondent/Applicant
Ms. Esther -C/A