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ELRCPartially AllowedNot stated in extract (Notice of Motion dated 21st February 2025)

Sukhija v NMC Fertility Point Kenya Limited (Employment and Labour Relations Cause E262 of 2021) [2025] KEELRC 1769 (KLR)

Employment and Labour Relations Court
17 June 2025
2,391 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employment court corrected its own judgment to award a former employee USD 50,840 in admitted but unpaid terminal dues.

What this practically means

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Executive summary

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The Claimant/Applicant, Sarita Sukhija, filed a Notice of Motion dated 21st February 2025 under Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules seeking review of the court's judgment of 4th February 2025, which awarded her 25 days' leave (USD 6,666.57) and air tickets but omitted her pleaded terminal dues. She argued that the Respondent had admitted, in its submissions of 29th November 2024 and its list of documents, terminal dues of Kshs. 5,287,335 or USD 50,840, and that failure to award this admitted amount was an error apparent on the face of the record. The Respondent opposed, arguing the claimant was bound by her pleadings, that what was pleaded as terminal dues were salary variables which the court had rejected, that the application was incompetently brought under Order 45 Rule 3, and that the matter was functus officio and the application amounted to a disguised appeal. Citing National Bank of Kenya v Ndungu Njau on apparent error, the court found that the judgment had failed to award amounts pleaded and acknowledged by the Respondent, constituting an error apparent on the record. The court reviewed paragraph 57 of its judgment, declaring the claimant entitled to terminal dues inclusive of the leave, and awarded a total of USD 51,985 (USD 1,144 air ticket plus USD 50,840 terminal dues), plus costs of the suit and interest at court rates from the date of judgment. Judgment delivered virtually at Nairobi on 17th June 2025 by Hellen Wasilwa, Judge.

Questions the Court framed

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

  1. 1.Whether the judgment of 4th February 2025 contains an error apparent on the face of the record justifying review of the terminal dues award
  2. 2.Whether the claim for Kshs. 5,287,335 or USD 50,840 as terminal dues was pleaded and ought to have been awarded

Key legal issues

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01

Error apparent on the face of the record as a ground for review

Holding

The court found that failing to award the admitted USD 50,840 in terminal dues, which was pleaded and acknowledged by the Respondent, was an error apparent on the record warranting review

Reasoning

The court noted the claimant prayed for terminal dues; the respondent admitted in its response and submissions that amounts were owing; yet the judgment awarded only the leave. Omitting an admitted, pleaded head of claim was a self-evident omission correctable on review under Section 80 CPA and Order 45 Rule 1, relying on National Bank of Kenya v Ndungu Njau.

p. 5
02

Whether review was a disguised appeal

Holding

The court rejected the respondent's argument that the application was an appeal in disguise and that the court was functus officio

Reasoning

The Respondent argued the application raised merit issues belonging to an appellate court and relied on the functus officio doctrine. The court nonetheless proceeded to review, finding the omission was an error apparent on the record rather than a mere erroneous decision or attempt to re-litigate the merits.

p. 5

Legal principles established

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  • A court may review its judgment to correct an error apparent on the face of the record where an admitted amount was omitted from the award

Court orders

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  1. 1.Review of the judgment at paragraph 57 to indicate that the claimant is entitled to her terminal dues inclusive of the leave granted at paragraph 56
  2. 2.Total award of USD 51,985 comprising USD 1,144 air ticket to India and USD 50,840 terminal dues
  3. 3.Costs of the suit and interest at court rates from the date of the judgment

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules

Relief refused

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Costs of the application to be in the cause

The court instead awarded costs of the suit and interest; no separate order on costs in the cause was made

p. 5

Costs

Costs of this suit and interest at court rates with effect from the date of the judgment

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.

This is an error apparent on the record which I proceed to review at para 57 of my judgement to include the 50,840 terminal dues.
p. 5review - error apparent on the face of the record
The judgment is accordingly reviewed at para 57 to indicate that the claimant is entitled to her terminal dues inclusive of the leave granted at para 56 and the total thus awarded :
p. 5disposition - review of judgment
Total = 51,985 USD plus costs of this suit and interest at court rates with efiect from the date of the judgment.
p. 5final orders - quantum and costs

Issues in the judgment

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minor

Applicant's submissions date the judgment inconsistently, stating it was delivered on 3rd December 2024 whereas the application and judgment both reference delivery on 4th February 2025

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, "Sukhija v NMC Fertility Point Kenya Limited (Employment and Labour Relations Cause E262 of 2021) [2025] KEELRC 1769 (KLR)", Case Analysis (2025). Not stated in extract (Notice of Motion dated 21st February 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1769/eng@2025-06-17

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