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ELRCPartially AllowedAppeal dated 1st February 2023 (Nakuru ELRC)· [2025] KEELRC 1851 (KLR)

Egerton University v Musyoka (Employment and Labour Relations Appeal E001 of 2023) [2025] KEELRC 1851 (KLR)

Employment and Labour Relations Court
24 June 2025
3,376 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court confirmed that employment awards can be taxed, and that 'review' cannot be used to smuggle in what should be an appeal.

What this practically means

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Executive summary

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This is a first appeal by the employer (Kenyatta University, the Appellant) against a ruling of Hon. R. Kefa, Principal Magistrate, delivered 30th November 2022, which allowed the Respondent's (a former part-time lecturer's) application dated 8th September 2022 for review of the court's earlier ruling of 6th July 2022. The 6th July 2022 ruling had upheld the Appellant's deduction of income tax from a consent award of Kshs.2,800,000 entered on 24th February 2021 and set aside execution. On review, the trial magistrate held that the consent was silent on taxation and set aside the 6th July 2022 orders. On appeal, the court found the double taxation issue raised on review was neither newly discovered evidence nor an error apparent on the face of the record; it was a challenge to an allegedly erroneous ruling and belonged on appeal, not review. The magistrate's grant of review amounted impermissibly to sitting on appeal over her own judgment. Guided by section 37 of the Income Tax Act and sections 19(1) and 49(2) of the Employment Act, the court allowed the appeal, set aside the ruling of 30th November 2022, found the consent award subject to taxation, and reinstated the ruling of 6th July 2022. The court suggested any genuine double taxation could be pursued with KRA, and ordered each party to bear their own costs.

Key legal issues

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01

Whether the double taxation issue raised in the Respondent's review application qualified as an error apparent on the face of the record or newly discovered matter

Holding

It did not; the review application did not establish a prima facie case for review and the trial magistrate erred in granting it, effectively sitting on appeal over her own ruling

Reasoning

The double taxation issue was already considered in the ruling of 6th July 2022, so it was neither new evidence nor a glaring self-evident error. The proper remedy against an allegedly erroneous ruling is an appeal. Allowing review on such grounds makes the magistrate sit in appeal on her own judgment, which is legally impermissible. The court therefore allowed the appeal and reinstated the 6th July 2022 ruling.

p. 6
02

Whether the consent award of 24th February 2021 was subject to taxation

Holding

Yes; the consent award was subject to taxation under section 37 of the Income Tax Act and sections 19 and 49(2) of the Employment Act

Reasoning

The reinstated ruling of 6th July 2022 had upheld statutory deductions, citing section 37(1) of the Income Tax Act on lump sum payments read with section 19(1) of the Employment Act. The judgment reiterates that employers must deduct and account for tax on emoluments and that payments under section 49 of the Employment Act are subject to statutory deductions. Any claim of actual double taxation is for KRA or appeal, not review.

p. 6

Legal principles established

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  • A belief in an erroneous conclusion or a challenge to an allegedly erroneous ruling is a ground for appeal, not review; review has a limited scope
  • An error apparent on the face of the record must be prima facie visible and not require elaborate argument or more than one opinion

Court orders

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  1. 1.The appeal dated 1st February 2023 is allowed and succeeds
  2. 2.The Ruling delivered on 30th November 2022 (not 9th December 2022) is set aside
  3. 3.Orders made finding that the consent award was subject to taxation
  4. 4.The ruling of 6th July 2022 is reinstated
  5. 5.Each party to meet their respective costs

Authorities

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Legislation

  • Civil Procedure Actsection 80
  • Civil Procedure RulesOrder 45 Rule 1
  • Employment and Labour Relations Court (Procedure) Rules, 2016Rule 33(1)
  • Employment Actsections 19(1), 49(2)
  • Income Tax Actsections 37, 37(1)
  • Constitution of KenyaArticles 41, 48, 159(2)(d)
  • Civil Procedure Act (Chapter 21, Laws of Kenya)Section 1B

Cases cited (17)

  • Republic V Medical Practitioners & Dentists Board & Another; MIO1 on behalf of MIO2 (a Minor) & Another (Interested Party); Kingángá (Exparte)
    [2021] KEHC 298 (KLR)
  • Republic V Advocates Disciplinary Tribunal Exparte Apollo Mboya
    [2019] KEHC 10910 (KLR)
  • Nyamogo & Nyamogo V Kogo
    [2019] eKLR
  • Omote & Another V Ogutu
    [2022] KEHC 16441 (KLR)
  • Directline Assurance Co. Ltd V Eremiah Wachira Ichaura
    [2016] eKLR
  • Kioko Joseph V Bamburi Cement Ltd
    [2017] eKLR
  • Ian Edwards V Bytes Technology Group Kenya Ltd
    [2018] eKLR
  • China Road & Bridge Corporation V Commissioner of Domestic Taxes
    [2021] eKLR
  • Co-Operative Bank of Kenya Ltd V Erastus Kuhara Mureithi
    [2013] eKLR
  • Joseph Ogonda Omondi V SBI International Holding AG Kenya
    [2015] eKLR
  • Attorney General & Others V Boniface Byanyima
    HCMA No.1789 of 2000
  • Levi Outa V Uganda Transport Company
    [1995] HCB 340
  • Tokeshi Imbuka Mambili & 2 Others v Joseph Onzeke Sambwa & Another
    [2004] KEHC 392 (KLR)
  • National Bank of Kenya V Ndungu Njau
    Civil Appeal No. 2111 of 1996
  • Jasbir Singh Rai and 3 Others V Tarlochan Singh Rai and 4 others
    [2014] eKLR
  • Republic V Communication Authority of Kenya and another exparte Legal Advice Centre (Kituo cha Sheria)
    [2015] eKLR
  • Andrew Mukite Saisi -VS- Tracker Group of Companies
    (2020)
On appeal from
Employment and Labour Relations Court (Principal Magistrate's Court)
ruling dated 30th November 2022 in the Respondent's review application dated 8th September 2022
Jurisdiction invoked
First appeal under the Employment and Labour Relations Court (Procedure) Rules, 2016; review grounds under Rule 33(1) of those Rules and section 80 of the Civil Procedure Act / Order 45 Rule 1 of the Civil Procedure Rules

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, "Egerton University v Musyoka (Employment and Labour Relations Appeal E001 of 2023) [2025] KEELRC 1851 (KLR)", Case Analysis (2025). Appeal dated 1st February 2023 (Nakuru ELRC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1851/eng@2025-06-24

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