Gombe v Agricultural Finance Corporation (Cause 371 of 2012) [2025] KEELRC 957 (KLR)
The bottom line
#Filing a Notice of Appeal in Kenya doesn't block a court review; the ELRC corrected an award cut from Ksh. 390,121 to Ksh. 127,477.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction to review where a Notice of Appeal has been filed
Rule 33 of the ELRC Rules bars review only where an appeal has been instituted; a mere Notice of Appeal expresses an intention to appeal and does not institute an appeal, so the review application was competent.
Relying on the Court of Appeal's decision in Multichoice (Kenya) Ltd v Wananchi Group (Kenya) Limited, the court held that filing of a Notice of Appeal does not signify the presence of an appeal except for purposes of rule 5(2)(b) applications. An appeal is filed only when the Record of Appeal containing the Memorandum of Appeal is lodged and paid for. Since no Record of Appeal had been lodged, no appeal was pending and the court retained jurisdiction.
Whether there was an error apparent on the face of the record
Yes. The December 2009 pay slip included basic salary arrears of Ksh. 87,548.00, misrepresenting the Respondent's monthly gross pay as Ksh. 130,040.30 instead of Ksh. 42,492.30, leading the court to over-compute compensation.
The court noted the March 2010 pay slip annexed to the application was not tendered at trial but demonstrated the true monthly gross pay, which the Respondent impliedly conceded. The December 2009 pay slip included salary arrears not forming part of regular monthly pay. The resultant misstatement was an obvious, self-evident error amenable to correction on review.
Delay in filing the review application
The application was filed within reasonable time, having been lodged twelve days after the error was discovered on 3rd July 2024.
The court accepted that reasonable time is a question of fact decided case by case. The error was discovered on 3rd July 2024 and the application presented on 16th July 2024, hardly twelve days later. Payment of the decretal sum did not bar correction of the error.
Legal principles established
#- Lodging a Notice of Appeal does not constitute institution of an appeal; an appeal to the Court of Appeal is filed once the Record of Appeal containing the Memorandum of Appeal is lodged and paid for.
- An error apparent on the face of the record is one that is obvious and self-evident without elaborate argument.
- What amounts to reasonable time for filing review is decided on a case-by-case basis.
Court orders
#- 1.Paragraph 4 of the judgment dated 12th October 2023 is reviewed and corrected to reflect the Respondent's monthly gross salary as Ksh. 42,492.30 instead of Ksh. 130,040.30
- 2.Paragraph 71 of the judgment dated 12th October 2023 is reviewed and corrected to reflect the compensation awarded to the Respondent as Ksh. 42,492.30 x 3 = Ksh. 127,476.90 instead of Ksh. 130,040.30 x 3 = Ksh. 390,121.00
- 3.Save for the above alterations, the rest of the judgment remains the same
- 4.Each party to bear own costs of the application
- Jurisdiction invoked
- Section 16 of the Employment and Labour Relations Court Act as read with rule 33 of the Employment and Labour Relations Court (Procedure) Rules, 2016
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gombe v Agricultural Finance Corporation (Cause 371 of 2012) [2025] KEELRC 957 (KLR)", Case Analysis (2025). Application dated 16th July 2024 (arising from judgment delivered 12th October 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/957/eng@2025-03-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.