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ELRCAllowedMeru ELRC No. E004 of 2024 (review application; notice of motion dated 23rd December 2024)

Timaflor Limited v Ndai (Cause E013 of 2023 & E004 of 2024 (Consolidated)) [2025] KEELRC 1470 (KLR)

Employment and Labour Relations Court
16 May 2025
1,519 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court corrected its own judgment on review, confirming employers can deduct statutory amounts from awards without a court order and interest runs from judgment, not filing.

What this practically means

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Executive summary

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On 19th December 2024 the court delivered judgment in Meru ELRC No. E004 of 2024, decreeing that the claimant pay the respondent a net of Kshs. 5,712,174.37 (after deducting Kshs. 1,864,574.29 owed on her staff loan) with interest at court rates from the date of filing suit. The claimant, through an affidavit sworn by Thomas Fransen, moved for review under Rule 74(1) of the ELRC Procedure Rules, 2024, seeking that the award be made subject to statutory deductions and that interest on the salary in lieu of notice and compensation run from the date of judgment rather than filing. The respondent opposed, arguing the issues belonged on appeal and that the application was an abuse of process. The court found the application was filed four days after judgment with no appeal lodged, satisfying the delay and no-appeal requirements. Applying Nyamogo and Nyamogo v Kogo on error apparent on the face of the record, the court held that the phrase 'leaving a net of Kshs.5,712,174.37' only meant the balance after the counterclaim deduction; that section 49(2) of the Employment Act statutorily requires deductions without a court order; and that awarding interest from filing was contrary to the pleadings, an error warranting rectification. The motion was allowed: the offending paragraph was corrected so interest runs from the date of judgment and the decreed sum is expressly subject to statutory deductions. Each party was ordered to bear its own costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the application meets the legal threshold for review of the judgment delivered on 19th December 2024

Key legal issues

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01

Whether the application satisfies the threshold for review under Rule 74(1) of the ELRC Procedure Rules, 2024

Holding

The application was filed four days after judgment without unreasonable delay, no appeal was lodged, and an error apparent on the face of the record existed regarding interest and statutory deductions, so review was warranted.

Reasoning

The court set out the Rule 74(1) thresholds: application without unreasonable delay, no appeal preferred, and existence of a ground in subrules (a)–(d). Filing four days after judgment and the absence of an appeal satisfied the first two limbs. On the substantive ground, the court applied Nyamogo and Nyamogo v Kogo on error apparent on the face of the record, found the interest award contradicted the pleadings, and held that the decreed sum is subject to statutory deductions under section 49(2) of the Employment Act without needing a court order.

p. 4
02

Whether the award is subject to statutory deductions

Holding

Yes; the phrase 'leaving a net of Kshs.5,712,174.37' was misapprehended and only meant the balance after deducting the counterclaim amount; payments under section 49(2) are subject to statutory deductions.

Reasoning

The applicant argued that ordering payment of a net sum would require it to pay tax on behalf of the respondent. The court held the word 'net' in the judgment referred only to the balance after the counterclaim deduction, and that section 49(2) of the Employment Act statutorily commands deductions, so no court order was needed.

p. 3
03

From what date interest on the decreed sum should accrue

Holding

Interest should accrue from the date of the judgment, as pleaded, not from the date of filing the suit.

Reasoning

The respondent's claim expressly sought interest from the date of judgment until payment in full, yet the judgment awarded interest from the date of filing the suit. The court found this contradicted the pleading and constituted an error apparent on the face of the record, justifying rectification by review.

p. 4

Legal principles established

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  • A court order is not needed for an employer to make statutory deductions from a decreed award since there is already a statutory command to do so under section 49(2) of the Employment Act.
  • An error apparent on the face of the record must be one that stares one in the face and on which there could reasonably be no two opinions; a mere erroneous decision is a ground for appeal, not review.
  • Where interest is awarded contrary to the pleadings, that is a mistake or error apparent on the face of the record justifying rectification by way of review.

Court orders

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  1. 1.The offending paragraph of the judgment is corrected to read: 'In the end, I decree that the claimant shall pay the respondent Kshs.7,576,748.66 less kshs.1,864,574.29 leaving a net of Kshs. 5,712,174.37. The sum will attract interest at court rates from the date of the judgment until payment in full. For avoidance of doubt the decreed sum is subject to statutory deductions'
  2. 2.The notice of motion dated 23rd December 2024 is allowed to the extent highlighted above
  3. 3.Each party to bear own costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Rule 74(1) of the Employment and Labour Relations Court (Procedure) Rules, 2024

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

For the reasons stated above, the notice of motion dated 23rd December 2024 is allowed to the extent highlighted above. Each party to bear own costs.
p. 4disposition and costs
The ofiending paragraph of the judgment is corrected to read as follows:
p. 4correction of the judgment by way of review
For avoidance of doubt the decreed sum is subject to statutory deductions
p. 4statutory deductions on the award
Mere error or wrong view is certainly no ground for a review although it may be for an appeal.
p. 3distinction between review and appeal
In the impugned judgment I awarded the interest from the date of filing the suit, which was indeed contrary to the pleading.
p. 4error apparent on the face of the record

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Timaflor Limited v Ndai (Cause E013 of 2023 & E004 of 2024 (Consolidated)) [2025] KEELRC 1470 (KLR)", Case Analysis (2025). Meru ELRC No. E004 of 2024 (review application; notice of motion dated 23rd December 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1470/eng@2025-05-16

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.