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ELRCPartially AllowedCause No E008 of 2025· [2025] KEELRC 2986 (KLR)

Mbeka v Kenya Power & Lighting Company (Cause E008 of 2025) [2025] KEELRC 2986 (KLR)

Employment and Labour Relations Court
30 October 2025
2,244 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court ruled gratuity is only payable if the applicable CBA expressly covers the employee, narrowing how such awards are enforced.

What this practically means

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Executive summary

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The Employment and Labour Relations Court at Kisumu (Dr. Jacob Gakeri, J.) determined a Notice of Motion dated 2nd September 2025 seeking review of the judgment delivered on 31st July 2025, in which the claimant obtained a declaration of unfair termination, an award equivalent to two months' salary, gratuity as per the CBA, and interest. The applicant contended that the gratuity award was erroneous because the claimant was on permanent and pensionable terms and the 2017/2020 CBA provided gratuity only for contract employees. The claimant/respondent opposed, arguing no error apparent on the face of the record or new evidence had been demonstrated, the respondent was estopped from repudiating the CBA gratuity clause, and the application was an attempt to re-agitate the matter. The court applied the settled test that an error apparent on the face of the record must be self-evident without analysis, citing Muyodi V ICDC. It held no such error existed because the judgment awarded gratuity conditionally - 'in accordance with the terms of the CBA' - and neither party had availed the CBA. However, on perusal of the 2017/2020 CBA, the court found gratuity was payable only to temporary/contract employees on three-year contracts at 15% of three years' basic wage on successful completion. It found sufficient reason for review and a case for clarification under Rule 74(1)(c) of the ELRC (Procedure) Rules, 2024, and reviewed the judgment in terms of award (c), making gratuity conditional on the claimant meeting the CBA criteria - meaning none is payable if he was not on a three-year contract. Each party was ordered to bear their own costs. The judgment was delivered virtually at Kisumu on 30th October 2025.

Key legal issues

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01

Whether the award of gratuity constituted an error apparent on the face of the record warranting review

Holding

No error apparent on the face of the record was demonstrated because the judgment awarded gratuity conditionally, in accordance with the terms of the CBA, which neither party placed before the court.

Reasoning

The court reiterated the standard from Muyodi that an error apparent on the face of the record must be self-evident and require no elaboration. Since the judgment expressly stated gratuity 'shall be addressed in accordance with the terms of the CBA', the award was conditional and not a general award; whether the claimant qualified depended on the CBA, so the applicant's complaint disclosed no self-evident error.

p. 4
02

Whether sufficient reason existed to justify review under Rule 74(1)(d) and clarification under Rule 74(1)(c)

Holding

Yes. Although no error apparent on the face of the record existed, sufficient reason justified review, and the case for clarification of the judgment was made out under Rule 74(1)(c).

Reasoning

Having perused the 2017/2020 CBA dated 27th January 2020, the court found no general gratuity provision for staff; gratuity was payable only to temporary/contract employees on three-year contracts at 15% of three years' basic wage on successful completion. The applicant's contention that the claimant was permanent and pensionable was relevant to whether gratuity was payable under the CBA, warranting review/clarification.

p. 5
03

Whether the claimant qualified for gratuity under the operative CBA

Holding

If the claimant was not serving under a three-year employment contract in accord with the CBA, he did not qualify for gratuity and none is payable.

Reasoning

The only gratuity provision in the 2017/2020 CBA appeared under Appendix 'C' on Terms of Service of Temporary/Contract employees, providing 15% of three years' basic wage on successful completion of three-year contracts. The court could decipher no other instance where gratuity was payable, and the applicant's reference to 31% per year served was unsupported by any clause of the operative CBA.

p. 5

Legal principles established

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  • An error or mistake apparent on the face of the record must be self-evident and discernible without analysis or elaborate argumentation; where the court could have taken a different view, there is no such error.
  • Payment of gratuity over and above pension is not unlawful; it is dependent on what the contracting parties agreed, and if payable it must be in accordance with the express provisions of the CBA in force.
  • Gratuity is neither pension nor service or severance pay but must have been a contractual term between the parties.

Court orders

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  1. 1.Judgment delivered on 31st July 2025 reviewed in terms of award (c) as follows: 'Gratuity as per the operative CBA (2017/2020 provided that the claimants meets the criteria provided by the CBA.'
  2. 2.Each party to bear their own costs

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3, 3A, 63(e), 80
  • Civil Procedure RulesOrder 45 Rules 1 and 2; Order 51 Rule 1; Order 21 Rule 1
  • Employment and Labour Relations Court ActSections 16, 17
  • Employment and Labour Relations Court (Procedure) Rules, 2024Rule 74(1)(b), (c), (d)
  • Employment ActSection 35
  • Labour Relations ActSection 59(5)
  • Constitution of KenyaArticles 159(2)(d), 48

Cases cited (14)

  • National Bank of Kenya Ltd V Ndungu Njau
    [1977] eKLR
  • Benjoh Amalgamated & another V Commercial Bank Ltd
    [2014] eKLR
  • Nyamongo & Nyamongo Advocates V Kogo
    [2001] eKLR
  • D. K. Njagi Marete V Teachers Service Commission
    [2020] eKLR
  • Peter W. Kariuki & 16 others V KARI
    [2018] eKLR
  • Otieno Ragot & Co. Advocates V National Bank
    [2020] eKLR
  • Mutunga V Rubi Plastics
    [2020] eKLR
  • UASU V Moi University
    [2025]
  • Ngige V Wells Fargo
    [2023] KEELRC 1963 (eKLR)
  • Muyodi V Industrial and Commercial Development Corporation & another
    [2006] EA 243
  • Paul Mwaniki V NHIF Baord of Managemtn
    [2020] eKLR
  • James Kiiru Mwangi V Gibson Kimani Mwangi & another
    [2021] eKLR
  • Abasi Belinda V Fredrick Kagwamu & another
    [1963] EA 557
  • Solacher V Romantic Hotels Ltd & another
    [2022] KECA 771 (KLR)
Jurisdiction invoked
Section 16 of the Employment and Labour Relations Court Act and Rule 74 of the Employment and Labour Relations Court (Procedure) Rules, 2024 (review jurisdiction)

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, "Mbeka v Kenya Power & Lighting Company (Cause E008 of 2025) [2025] KEELRC 2986 (KLR)", Case Analysis (2025). Cause No E008 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2986/eng@2025-10-30

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