Mmbaya v Excellent Security Services Ltd (Employment and Labour Relations Cause E212 of 2024) [2026] KEMC 785 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Error apparent on the face of the record
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
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.
Slip rule
The errors were not clerical; they entered the Court's substantive reasoning on substantive justification and procedural fairness
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.
Materiality of the errors
The errors materially affected the judgment and warranted review
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.
Review versus appeal in disguise
The application was properly within the review jurisdiction, not an appeal in disguise
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.
Legal principles established
#- 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
#- 1.The Notice of Motion dated 14th May 2026 is allowed
- 2.The judgment delivered on 30th April 2026 is reviewed and set aside in its entirety
- 3.The pleadings, oral evidence, documentary evidence and submissions already on record shall remain on record
- 4.The Court shall reconsider the suit on the correct record and deliver a fresh judgment
- 5.The fresh judgment to determine afresh substantive and procedural fairness of the termination and the Claimant's entitlement to reliefs
- 6.Nothing in the ruling shall be construed as expressing a concluded view on the merits of the original claim
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.