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MagistratePartially AllowedNot stated in the excerpt· [2026] KEMC 785 (KLR)

Mmbaya v Excellent Security Services Ltd (Employment and Labour Relations Cause E212 of 2024) [2026] KEMC 785 (KLR)

Employment and Labour Relations Court / Magistrates' Court (as delivered at Mombasa)
27 August 2026
2,361 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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A Mombasa court set aside its own unfair termination judgment because it analysed facts from an entirely different case, and will now issue a fresh judgment.

What this practically means

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Executive summary

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This is a first-instance ruling on a Notice of Motion dated 14th May 2026 seeking review, under section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules, of a judgment delivered on 30th April 2026 in which the Claimant's unfair termination claim had been dismissed in its entirety with each party bearing its own costs. The Claimant, a Night Security Guard employed around 4th May 2016 and summarily dismissed on 14th December 2022 following disciplinary proceedings over alleged theft of four window louvers, contended that the judgment contained material factual errors apparent on the face of the record. The court compared the judgment against the actual record and found that it had analysed a wholly different factual matrix: a Claimant employed as a Mixer earning KShs. 25,386, an incident involving a bag of flour, a KShs. 10,000 deduction form, a 2024 show-cause letter and disciplinary proceedings over low production quality. The Respondent acknowledged possible inadvertent errors but argued they were slip-rule errors without causal nexus to the outcome, and that review was being used as an appeal in disguise, relying on Fredrick Otieno Outa, National Bank of Kenya Ltd v Njau and CKO v JMO. The court held the error was apparent on the face of the record; that it was not clerical, because the incorrect facts entered the Court's reasoning on substantive justification and procedural fairness under sections 41, 43 and 45 of the Employment Act; that the errors materially affected the judgment; and that the application was not an appeal in disguise. The judgment of 30th April 2026 was reviewed and set aside in its entirety, the existing record preserved, and a fresh judgment directed on the correct record, with costs of the application in the cause. No view was expressed on the merits.

Key legal issues

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01

Error apparent on the face of the record

Holding

The judgment's references to a Mixer, a bag of flour, a KShs. 25,386 salary and 2024 disciplinary proceedings, where the actual case concerned a Night Security Guard and 2022 proceedings, constituted an error apparent on the face of the record

Reasoning

Comparison of the judgment with the pleadings and evidence showed facts in the judgment that did not correspond with the case heard. No elaborate argument or interrogation of conflicting evidence was needed to establish the error, which was patent from the record.

p. 5
02

Slip rule

Holding

The errors were not clerical; they entered the Court's substantive reasoning on substantive justification and procedural fairness

Reasoning

The slip rule permits correction of obvious errors that do not change the substance of a judgment. Here the incorrect factual material underpinned findings under sections 41, 43 and 45 of the Employment Act, so correction would require reconsideration of those questions, beyond the slip rule's scope.

p. 6
03

Materiality of the errors

Holding

The errors materially affected the judgment and warranted review

Reasoning

The errors concerned identity of employment, salary, alleged misconduct and chronology - the heart of an unfair termination claim under sections 41, 43 and 45 of the Employment Act. The court could not assume it would reach the same conclusion on the correct facts; the integrity of the judicial process required reasons to correspond with the case actually presented.

p. 7
04

Review versus appeal in disguise

Holding

The application was properly within the review jurisdiction, not an appeal in disguise

Reasoning

Review cannot be used by a party merely dissatisfied with a court's assessment of evidence or conclusions. Here the Applicant showed the judgment itself contained and relied on material facts that never formed part of his case, which is distinguishable from mere disagreement with the court's reasoning.

p. 8

Legal principles established

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  • Incorporation of an entirely different factual matrix into judicial reasoning is not a clerical slip-rule error but an error apparent on the face of the record warranting review
  • A court may not preserve a judgment's conclusion by retrospectively reconstructing a factual route to it; it must assess the correct evidence first
  • Review is not a disguised appeal, but correcting a judgment that relies on facts not part of the case is a proper exercise of review jurisdiction

Court orders

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  1. 1.The Notice of Motion dated 14th May 2026 is allowed
  2. 2.The judgment delivered on 30th April 2026 is reviewed and set aside in its entirety
  3. 3.The pleadings, oral evidence, documentary evidence and submissions already on record shall remain on record
  4. 4.The Court shall reconsider the suit on the correct record and deliver a fresh judgment
  5. 5.The fresh judgment to determine afresh substantive and procedural fairness of the termination and the Claimant's entitlement to reliefs
  6. 6.Nothing in the ruling shall be construed as expressing a concluded view on the merits of the original claim
  7. 7.Costs of the application shall be in the cause
Jurisdiction invoked
Section 80 of the Civil Procedure Act and Order 45 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, "Mmbaya v Excellent Security Services Ltd (Employment and Labour Relations Cause E212 of 2024) [2026] KEMC 785 (KLR)", Case Analysis (2026). Not stated in the excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/785/eng@2026-08-27

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