1. This ruling relates to a Notice of Motion application dated 24th February, 2026, brought pursuant to Sections 1A, 1B, and 80 of the Civil Procedure Act Cap 21 of the Laws of Kenya, Order 51 Rule 1, Order 45 of the Civil Procedure Rules 2010. The Applicant seeks the following reliefs: -
i. Spent
ii. THAT this Honourable Court be pleased to review its judgment entered on 20th December 2018 to reflect and/ or include the default judgment entered against the 2nd Respondent.
iii. THAT this Honourable Court be pleased to review its judgment entered on 20th December 2018 compelling the 2nd Respondent to pay the Claimants compensatory damages for 12 months since the termination was orchestrated by them.
iv. THAT the costs of this application be provided for.
2. The application is supported by the grounds on the face thereof and the affidavit of Samuel Ngovu, the Applicant herein.
3. The Applicant seeks a review of the Court's decree on the grounds that there is new and important evidence that was not within the Claimants' knowledge and that could not have been produced despite due diligence.
4. Specifically, the Applicant contends that the Court committed an apparent error on the face of the record by failing to reflect or include the default judgment that had been entered against the 2nd Respondent.
5. The Applicants state that on 20th December 2018, the Court delivered judgment in their favour and awarded them Kshs. 2,165,334 as compensation for termination of employment on account of redundancy by the 1st Respondent. They contend further that the judgment contained an error apparent on the face of the record because it failed to reflect or incorporate the default judgment that had previously been entered against the 2nd Respondent.
6. The Applicants further aver that after the judgment was delivered, their advocates filed an application seeking review of the judgment so as to include the default judgment against the 2nd Respondent, but that application was dismissed together with the main suit due to the Claimants’ non-attendance in compliance with directions issued by the Court on 12th October 2021.
7. The Applicants argue that the 2nd Respondent ought to be compelled to pay compensation equivalent to twelve months’ salary for unfair termination, and in support of this position, they have annexed copies of a termination letter dated 30th September 2011 and a salary harmonization letter dated 31st August 2009.
8. The Applicant contends that unless the application is heard, they stand to suffer irreparable harm and prejudice.
9. They aver that it is therefore just and equitable in the circumstances for the Court to grant the orders sought.
10. The 2nd Respondent opposed the Motion vide a Replying affidavit sworn by one Catherine Munyao on 13th April, 2026.
11. The 2nd Respondent argues that the application is an abuse of the Court process as it seeks to reopen a matter that was conclusively determined in 2018 on the basis of unspecified "new evidence." It maintains that the Court had already dismissed the claim against the 2nd Respondent after finding no valid cause of action against it, and the Applicants failed to challenge that decision through an appeal within the prescribed time.
12. The Respondent further contends that the documents relied upon by the Applicants do not link the 2nd Respondent to the alleged termination and, in fact, point to a different entity. It denies ever having employed the Applicants and asserts that there is no legal or factual basis for holding it liable for the Applicants' claims.
13. The 2nd Respondent argues further that the application is a disguised appeal and an improper attempt to amend a judgment delivered in 2018 after the expiry of the appeal period. It maintains that it was correctly expunged from the suit and cannot now be held liable for an employment contract to which it was never a party.
14. The Respondent further points out that the documents relied upon by the Applicants do not emanate from the 2nd Respondent and therefore provide no basis for imposing liability upon it. It also accuses the Applicants of omitting the procedural history of the matter and the involvement of previous advocates in an attempt to mislead the Court.
15. It is the 2nd Respondent’s position that granting the orders sought would unjustly impose liability on a stranger to the employment relationship, whereas refusing the application would occasion no prejudice to the Applicants.
16. The Respondent therefore urges the Court to dismiss the application, contending that any challenge to the 2018 judgment ought to have been pursued through an appeal rather than by way of review.
17. Parties canvassed the application through written submissions, which have been duly considered.
Analysis and Determination
18. The singular issue for determination is whether the Applicant has satisfied the threshold for review of the judgment delivered on 20th December 2018.
19. The jurisdiction of this Court to review its decisions is conferred by Section 16 of the Employment and Labour Relations Court Act and Rule 74 of the Employment and Labour Relations Court (Procedure) Rules, 2024. Rule 74 states that a party seeking review must demonstrate discovery of new and important matter or evidence which, despite the exercise of due diligence, was not within his knowledge or could not be produced at the time of trial, or for a mistake or error apparent on the face of the record, or for any other sufficient reason, and that the application must be brought without unreasonable delay.
20. The Court of Appeal in National Bank of Kenya Ltd v Ndungu Njau [2001] KEHC 868 (KLR), held that review is available whenever the Court considers it necessary to correct an apparent error or omission on the part of the Court, but it cannot be used to re-open a matter or enable a party to challenge the correctness of a decision. The Court further stated that an erroneous view of the law or evidence is a ground for appeal, and not for review.
21. Similarly, in Pancras T. Swai v Kenya Breweries Limited[2005] KEHC 1832 (KLR), the Court of Appeal held that a review is not an avenue for a party to re-argue its case or introduce matters that ought to have been canvassed on appeal.
22. The Applicant herein alleges discovery of new and important evidence. However, no such evidence has been identified with specificity. The documents relied upon, namely the termination letter dated 30th September 2011 and the salary harmonization letter dated 31st August 2009, were in existence long before the judgment of 20th December 2018 was rendered.
23. The Applicant has thus not demonstrated that these documents were unavailable despite the exercise of due diligence, nor has he explained why they could not have been produced during the hearing of the main claim.
24. The Court therefore finds that the ground of discovery of new and important evidence has not been established.
25. The Applicant further argues that there is an error apparent on the face of the record because the judgment failed to reflect a default judgment allegedly entered against the 2nd Respondent. From the material placed before Court, the judgment of 20th December 2018 expressly addressed the liability of the parties and culminated in an award against the 1st Respondent only. The Applicant is essentially inviting the Court to revisit its findings and impose liability upon the 2nd Respondent notwithstanding the Court's determination of the dispute. Whether the Court was right or wrong in dismissing the claim against the 2nd Respondent is a matter going to the merits of the judgment and is therefore a proper subject of appeal rather than review.
26. The Applicant has also sought an order compelling the 2nd Respondent to pay twelve months' compensation for unfair termination. Such an order, in my view, would require the Court to make fresh findings on liability, employment relationship, and the legal obligations of the 2nd Respondent. Those are substantive issues that were for determination during the trial and cannot be introduced through a review application. To grant such relief would effectively amount to sitting on appeal over the judgment of 20th December 2018.
27. It is also not lost on this court that the judgment sought to be reviewed was delivered on 20th December 2018, whereas the present application was filed on 24th February 2026, approximately eight years later. Rule 74 requires that an application for review be made within reasonable time. The Applicant has offered no explanation for this inordinate delay. The Court of Appeal in Francis Origo & Another v Jacob Kumali Mungala [2000] KEHC 65 (KLR), emphasized that unexplained delay is a relevant factor in determining whether review jurisdiction should be exercised.
28. In the circumstances, the Court is not persuaded that the Applicant has demonstrated discovery of new and important evidence, an error apparent on the face of the record, or any other sufficient reason warranting review. What emerges from the application is dissatisfaction with the findings and conclusions reached in the judgment of 20th December 2018. Such dissatisfaction ought to have been pursued through the appellate process and within the timelines prescribed by law.
29. Accordingly, the Notice of Motion dated 24th February 2026 is grossly devoid of merit and is hereby dismissed.
30. Given the age of the matter and the nature of the dispute, each party shall bear its own costs.
31. Orders accordingly.
SIGNED, DATED, AND DELIVERED BY VIDEO-LINK AND IN COURT AT NAIROBI THIS 19TH DAY OF JUNE, 2026.
Mr. Upendo present for the Applicant
Mr. Oyagi present for the 2nd Respondent
N/A for 1st Respondent.
Ms. Esther S-C/A
i. Spent
ii. THAT this Honourable Court be pleased to review its judgment entered on 20th December 2018 to reflect and/ or include the default judgment entered against the 2nd Respondent.
iii. THAT this Honourable Court be pleased to review its judgment entered on 20th December 2018 compelling the 2nd Respondent to pay the Claimants compensatory damages for 12 months since the termination was orchestrated by them.
iv. THAT the costs of this application be provided for.
2. The application is supported by the grounds on the face thereof and the affidavit of Samuel Ngovu, the Applicant herein.
3. The Applicant seeks a review of the Court's decree on the grounds that there is new and important evidence that was not within the Claimants' knowledge and that could not have been produced despite due diligence.
4. Specifically, the Applicant contends that the Court committed an apparent error on the face of the record by failing to reflect or include the default judgment that had been entered against the 2nd Respondent.
5. The Applicants state that on 20th December 2018, the Court delivered judgment in their favour and awarded them Kshs. 2,165,334 as compensation for termination of employment on account of redundancy by the 1st Respondent. They contend further that the judgment contained an error apparent on the face of the record because it failed to reflect or incorporate the default judgment that had previously been entered against the 2nd Respondent.
6. The Applicants further aver that after the judgment was delivered, their advocates filed an application seeking review of the judgment so as to include the default judgment against the 2nd Respondent, but that application was dismissed together with the main suit due to the Claimants’ non-attendance in compliance with directions issued by the Court on 12th October 2021.
7. The Applicants argue that the 2nd Respondent ought to be compelled to pay compensation equivalent to twelve months’ salary for unfair termination, and in support of this position, they have annexed copies of a termination letter dated 30th September 2011 and a salary harmonization letter dated 31st August 2009.
8. The Applicant contends that unless the application is heard, they stand to suffer irreparable harm and prejudice.
9. They aver that it is therefore just and equitable in the circumstances for the Court to grant the orders sought.
10. The 2nd Respondent opposed the Motion vide a Replying affidavit sworn by one Catherine Munyao on 13th April, 2026.
11. The 2nd Respondent argues that the application is an abuse of the Court process as it seeks to reopen a matter that was conclusively determined in 2018 on the basis of unspecified "new evidence." It maintains that the Court had already dismissed the claim against the 2nd Respondent after finding no valid cause of action against it, and the Applicants failed to challenge that decision through an appeal within the prescribed time.
12. The Respondent further contends that the documents relied upon by the Applicants do not link the 2nd Respondent to the alleged termination and, in fact, point to a different entity. It denies ever having employed the Applicants and asserts that there is no legal or factual basis for holding it liable for the Applicants' claims.
13. The 2nd Respondent argues further that the application is a disguised appeal and an improper attempt to amend a judgment delivered in 2018 after the expiry of the appeal period. It maintains that it was correctly expunged from the suit and cannot now be held liable for an employment contract to which it was never a party.
14. The Respondent further points out that the documents relied upon by the Applicants do not emanate from the 2nd Respondent and therefore provide no basis for imposing liability upon it. It also accuses the Applicants of omitting the procedural history of the matter and the involvement of previous advocates in an attempt to mislead the Court.
15. It is the 2nd Respondent’s position that granting the orders sought would unjustly impose liability on a stranger to the employment relationship, whereas refusing the application would occasion no prejudice to the Applicants.
16. The Respondent therefore urges the Court to dismiss the application, contending that any challenge to the 2018 judgment ought to have been pursued through an appeal rather than by way of review.
17. Parties canvassed the application through written submissions, which have been duly considered.
Analysis and Determination
18. The singular issue for determination is whether the Applicant has satisfied the threshold for review of the judgment delivered on 20th December 2018.
19. The jurisdiction of this Court to review its decisions is conferred by Section 16 of the Employment and Labour Relations Court Act and Rule 74 of the Employment and Labour Relations Court (Procedure) Rules, 2024. Rule 74 states that a party seeking review must demonstrate discovery of new and important matter or evidence which, despite the exercise of due diligence, was not within his knowledge or could not be produced at the time of trial, or for a mistake or error apparent on the face of the record, or for any other sufficient reason, and that the application must be brought without unreasonable delay.
20. The Court of Appeal in National Bank of Kenya Ltd v Ndungu Njau [2001] KEHC 868 (KLR), held that review is available whenever the Court considers it necessary to correct an apparent error or omission on the part of the Court, but it cannot be used to re-open a matter or enable a party to challenge the correctness of a decision. The Court further stated that an erroneous view of the law or evidence is a ground for appeal, and not for review.
21. Similarly, in Pancras T. Swai v Kenya Breweries Limited[2005] KEHC 1832 (KLR), the Court of Appeal held that a review is not an avenue for a party to re-argue its case or introduce matters that ought to have been canvassed on appeal.
22. The Applicant herein alleges discovery of new and important evidence. However, no such evidence has been identified with specificity. The documents relied upon, namely the termination letter dated 30th September 2011 and the salary harmonization letter dated 31st August 2009, were in existence long before the judgment of 20th December 2018 was rendered.
23. The Applicant has thus not demonstrated that these documents were unavailable despite the exercise of due diligence, nor has he explained why they could not have been produced during the hearing of the main claim.
24. The Court therefore finds that the ground of discovery of new and important evidence has not been established.
25. The Applicant further argues that there is an error apparent on the face of the record because the judgment failed to reflect a default judgment allegedly entered against the 2nd Respondent. From the material placed before Court, the judgment of 20th December 2018 expressly addressed the liability of the parties and culminated in an award against the 1st Respondent only. The Applicant is essentially inviting the Court to revisit its findings and impose liability upon the 2nd Respondent notwithstanding the Court's determination of the dispute. Whether the Court was right or wrong in dismissing the claim against the 2nd Respondent is a matter going to the merits of the judgment and is therefore a proper subject of appeal rather than review.
26. The Applicant has also sought an order compelling the 2nd Respondent to pay twelve months' compensation for unfair termination. Such an order, in my view, would require the Court to make fresh findings on liability, employment relationship, and the legal obligations of the 2nd Respondent. Those are substantive issues that were for determination during the trial and cannot be introduced through a review application. To grant such relief would effectively amount to sitting on appeal over the judgment of 20th December 2018.
27. It is also not lost on this court that the judgment sought to be reviewed was delivered on 20th December 2018, whereas the present application was filed on 24th February 2026, approximately eight years later. Rule 74 requires that an application for review be made within reasonable time. The Applicant has offered no explanation for this inordinate delay. The Court of Appeal in Francis Origo & Another v Jacob Kumali Mungala [2000] KEHC 65 (KLR), emphasized that unexplained delay is a relevant factor in determining whether review jurisdiction should be exercised.
28. In the circumstances, the Court is not persuaded that the Applicant has demonstrated discovery of new and important evidence, an error apparent on the face of the record, or any other sufficient reason warranting review. What emerges from the application is dissatisfaction with the findings and conclusions reached in the judgment of 20th December 2018. Such dissatisfaction ought to have been pursued through the appellate process and within the timelines prescribed by law.
29. Accordingly, the Notice of Motion dated 24th February 2026 is grossly devoid of merit and is hereby dismissed.
30. Given the age of the matter and the nature of the dispute, each party shall bear its own costs.
31. Orders accordingly.
SIGNED, DATED, AND DELIVERED BY VIDEO-LINK AND IN COURT AT NAIROBI THIS 19TH DAY OF JUNE, 2026.
C. N. BAARI
JUDGE
Appearance: Mr. Upendo present for the Applicant
Mr. Oyagi present for the 2nd Respondent
N/A for 1st Respondent.
Ms. Esther S-C/A