Charles Onchwati v Karen Blixen Coffee Garden & Cottages Limited

2. The Grounds of the application were as follows- a. THAT this Honourable Court's Judgment delivered virtually on the 26th day of September 2025 has either error apparent on the face of record or on account of new evidence then not readily available which would warrant this Honourable Court to review it. b. THAT Pursuant to the Provisions of Section 80 of the Civil Procedure Act, Order 45 of the Civil Procedure Rules and the other Provisions of the law cited above, this Honourable Court has Jurisdiction to hear and determine this application. c. THAT this Court did not make any finding on the following items which were specifically pleaded and proved during the hearing and submissions, that is: a) Service dues b) Unpaid leave days and public holidays a sum of KES: 217,279. c) Underpayment of Salaries @ KES: 1,000 for the months of August 2017, April, June and July 2018 KES: 4,000 d) Unpaid annual leave travel allowance for six years @ KES: 4, 400 which translates to KES: 26,400. e) Unpaid Salary for the months of August, September and October 2018 amounting to KES: 454,834. f) Damages arising from listing of the claimant with Credit Bureau. g) Issue on the commencement of interest on the award. JUDGMENT IN NAIROBI ELRC CAUSE NO. 185 OF 2019 2|Page

page 2 of 19

d. THAT the failure by this Honourable Court to consider issues above, is an error apparent on the face of record, which act will warrant this Honourable to review its own judgment, pursuant to the above cited Provisions of the law. 3. The applicant filed his affidavit sworn on the 9th March 2026, where he produced a copy of the said judgment of the 26th day of September 2025 and marked CO "1", and sample judgments marked CO"2", where interest is backdated to the date of filing by this same court. Interest was awarded in the instant case from the judgment date. 4. The applicant filed a supplementary affidavit where he introduced what he said was new evidence. He stated that in paragraph 9(a) of the Supporting Affidavit, which is about claim for services dues for the years he rendered services to the respondent, the Court in its said Judgment, held: - "....in any case the claimant's was on NSSF as per the pay-slip and had not placed in court any evidence to the contrary. The burden was on the claimant to prove that the deducted NSSF monies was not remitting money to NSSF...." On this issue the applicant contended that the respondent's only witness who testified in the matter as DW "1" on cross examination by his Counsel; very clearly confirmed to this Honourable Court that, indeed the were not remitting any monies appearing as deducted in my pay-slip to NSSF. That still on this issue, he stated he was instructed by his advocates on record, which information he believes to be true, that a failure by this Honourable Court to allow this claim was an error apparent on the face of the record which will warrant a review of the said judgment by this court. 5. In the supplementary affidavit, the applicant further stated he had a statement from the NSSF, which was then not readily available to him, to the effect that the respondent never forwarded the deductions which were reflected in his pay-slip to the NSSF. He stated that he had sought JUDGMENT IN NAIROBI ELRC CAUSE NO. 185 OF 2019 3|Page

page 3 of 19

service dues in his claim (15 x 155,111.6= KES: 2,296, 665) [Attached was a copy of a statement from NSSF marked CO"3"]. 6. The applicant in supplementary affidavit stated he is now claiming KES: 454,834, salary of 2 months; based on a cheque that was allegedly never given to him for due presentation to his Banker. [Attached herewith was a copy of the said cheque drawn by the Respondent on the 31st Day of December 2018 here now marked CO"4"). 7. At paragraph 9(f) of his Supporting Affidavit, the applicant asserted he was seeking damages arising from his listing at the Credit Bureau due to the Respondent's failure to remit monies deducted from my salaries, which money was never remitted to NIC. That as early as 29th November 2018, his then advocate addressed the Respondent on the same. This document was included in my documents submitted to the Court. That the Honourable Court in its said Judgment at the tail-end of paragraph 41 held that I did not take immediate steps against the Respondent to mitigate this issue. This is not the correct position, in view of the attached annexure. [Attached herewith is a demand letter dated 29th November 2018 as CO"5"]. The applicant stated that he also forwarded SMS'S to the then Acting Human Resource Manager one Jacqueline and the Director DW "1", requesting them to immediately remit the deductions to NIC Bank [Attached herewith are SMS extracts to the duo marked as CO"6"]. 8. Regarding the deductions of monies for the staff medical insurance, it is not in dispute that the respondent deducted money from his salary for the same. The issue here therefore is that the said deducted money was never remitted to APA Insurance as per the annexure here below. That from the foregoing, it did not require him to incur an expenditure on medication for him to be entitled to make this claim. His claim is that since the month of 11th May 2016, a total of JUDGMENT IN NAIROBI ELRC CAUSE NO. 185 OF 2019 4|Page

page 4 of 19

KES: 12,400 was deducted from his salary, which money was never remitted to the insurance. [Attached herewith is an email conversation with APA made on the 24th MARCH 2026 as CO"6"]. 9. The respondent opposed the application vide replying affidavit of Dr Bonnie Dunbar sworn on the 7th May 2026. Among others the deponent stated- 10. That following the delivery of the said judgment, the Respondent proceeded to fully satisfy the decretal sum together with the costs of the suit as ordered by this Honourable Court. 11. THAT the Respondent paid a total sum of Kshs. 2,642,204.80/= as the decretal amount plus an agreed sum of Kshs. 184,994/= as costs for the suit thereby fully satisfying the decree herein. Annexed hereto and marked "DBD-2" were copies of the correspondence between her advocates and the Claimant's Advocates, bank Cheques and M-Pesa message as proof of payment evidencing full settlement of the decretal sum and costs. 12. That the Application is therefore an afterthought brought in bad faith, serves no practical purpose and amounts to an abuse of the court process. 13. That the Application, Supporting Affidavit and Supplementary Affidavit do not demonstrate discovery of any new or important evidence that was not within the knowledge of the Applicant during the hearing of the suit. All the matters raised by the Applicant were within his knowledge and were matters that were canvassed or ought to have been canvassed during the hearing of the case before judgment was delivered. 14. That in as far as annexures "C0-5" and "C0-6" of his application are concerned, the Applicant deliberately chose to exhibit selective portions of the WhatsApp conversations allegedly JUDGMENT IN NAIROBI ELRC CAUSE NO. 185 OF 2019 5|Page

page 5 of 19

exchanged with the Claimant's employee, Jacqueline Adhiambo, while intentionally and maliciously omitting other portions thereof that were within his possession, custody, and knowledge at all material times. Having had full access to his mobile phone and the said conversations throughout the proceedings, the Applicant cannot now seek to introduce the omitted messages now under the guise of new evidence not within his knowledge and get a review of the Judgment of this Honourable Court. The purported "new evidence" is neither new nor unavailable and the application is merely an afterthought aimed at misleading the Court and re-litigating issues that were conclusively determined. 15. That the Applicant has also failed to identify any error apparent on the face of the record in the judgment delivered by this Honourable Court. 16. That their Advocates on record advised that an error apparent on the face of the record must be self-evident and not one that requires elaborate argument or re-evaluation of evidence. None has been presented in the Application. 17. That the allegation that this Honourable Court's failure to award service pay constitutes an error apparent on the face of the record is misconceived, misguided, misplaced, and legally untenable. The Claimant's original claim before the Court was for severance pay and not service pay, and the Claimant cannot now seek to introduce a completely new claim through an application for review. 18. That the present attempt is improper, fatally defective, and amounts to an abuse of the Court process, as a review application cannot be used to amend pleadings, reframe claims, or grant reliefs that were neither pleaded nor canvassed during the hearing. The application is therefore JUDGMENT IN NAIROBI ELRC CAUSE NO. 185 OF 2019 6|Page

page 6 of 19

merely an afterthought driven by an unjustified desire to obtain additional awards beyond the scope of the original claim. 19. That, further, the Claimant now seeks to introduce claims for damages allegedly arising from listing with a Credit Reference Bureau as well as alleged unpaid salaries of Kshs. 1,000/= for the month of August 2017 and Kshs. 4,000/= for the months of April, June, and July 2018 each, none of which formed part of the original Memorandum of Claim filed before this Honourable Court. 20. The respondent asserted that their advocate advised that it is trite law that parties are bound by their pleadings, and a review application cannot be used as a means of amending, enlarging, or introducing new claims after delivery of Judgment. The Claimant is improperly attempting to reopen the dispute and invite this Honourable Court to determine issues that were neither pleaded, canvassed, nor adjudicated upon during the hearing. Such an approach offends the principles of finality in litigation and amounts to a clear abuse of the Court process. The application is therefore legally untenable, misconceived, and merely intended to unjustly enrich the Claimant beyond the scope of the claims originally presented before the Court. 21. That the Applicant has not demonstrated any specific claim that was pleaded, canvassed and left undetermined by the Court, and the allegations made in the application is therefore unfounded. The Claims purported not to have been determined are disposed of at paragraphs 35 to 43 of the Judgment. For instance, the claim for unpaid salary for the months of August September and October, 2018 of Kshs 454, 834 was sufficiently addressed at paragraph 40 while that of medical deduction of Kshs. 12,400/= was canvassed during trial and determined at paragraph 42 of the Judgment. JUDGMENT IN NAIROBI ELRC CAUSE NO. 185 OF 2019 7|Page

page 7 of 19

22. That the Applicant's application essentially invites this Honourable Court to revisit and reconsider the merits of the case, which is not the purpose of a review. 23. That if the Applicant was dissatisfied with the findings and determination of the Court, the proper remedy available to him was to prefer an appeal and not to seek a review of the judgment. 24. That further, the judgment of this Honourable Court has already been fully complied with by the Respondent through payment of the decretal sum and costs, rendering the present application unnecessary and overtaken by events. This Court is now functus officio. 25. That in any event, it is our considered opinion that the Judgment of this Honourable Court was not only well thought out and detailed but also legally sound and it is therefore in the interest of justice that the Application be dismissed with costs to the Respondent. The respondent sought costs of the application. Decision 26. The application was canvassed by way of written submissions. 27. The issue for determination is whether the application for review is proper and merited. The law 28. Rule 74 of the Employment and Labour Relations Court (Procedure) Rules,2024 provides that: ‘74. Review JUDGMENT IN NAIROBI ELRC CAUSE NO. 185 OF 2019 8|Page

page 8 of 19

(1)A person who is aggrieved by a decree or an order from which an appeal is allowed but from which no appeal is preferred or from which no appeal is allowed, may within reasonable time, apply for a review of the judgment or ruling— (a)if there is discovery of a new and important matter or evidence which, despite the exercise of due diligence, was not within the knowledge of that person or could not be produced by that person at the time when the decree was passed or the order made; (b)on account of some mistake or error apparent on the face of the record; (c)if the judgment or ruling requires clarification; or (d)for any other sufficient reason. (2)An application for review of a decree or order of the Court under subrule (1) shall be made to the judge who passed the decree or made the order sought to be reviewed or to any other judge if that judge is not attached to the Court station. (3)A party seeking review of a decree or order of the Court shall apply to the Court by way of notice of motion supported by an affidavit and shall file a copy of the Judgment or decree or ruling or order to be reviewed. (4)The Court shall, upon hearing an application for review, deliver a ruling allowing or dismissing the application. (5)Where an application for review is granted, the Court may review its decision to conform to the findings of the review or quash its decision and order that the suit be heard again. (6)An order made for a review of a decree or order shall not be subject to further review.’ JUDGMENT IN NAIROBI ELRC CAUSE NO. 185 OF 2019 9|Page

page 9 of 19

29. The court upheld the authority cited by the applicant as relevant in the application -in the case of Muyodi vs. Industrial and Commercial Development Corporation & Another (2006) 1 EA 243, where the Court of Appeal considered what constitutes a mistake or error apparent on the face of the record, and stated as follows: “……in Nyamogo & Nyamogo vs Kogo (2001) EA 174 this Court said that an error apparent on the face of the record cannot be defined precisely or exhaustively, there being an element of indefiniteness inherent in its very nature, and it must be left to be determined judicially on the facts of each case. There is real distinction between a mere erroneous decision and an error apparent on the face of the record. Where an error on a substantial point of law stares one in the face, and there could reasonably be no two opinions, a clear case of error apparent on the face of the record would be made out. An error which has to be established by long drawn process of reasoning or on points where there may conceivably be two opinions, can hardly be said to be an error apparent on the face of the record. Again, if a view adopted by the court in the original record is a possible one, it cannot be an error or wrong view is certainly no ground for a review although it may be for an appeal……..” whether the application for review is proper and merited 30. The court is guided by Rule 74 (above). whether the application is proper 31. The court finds review is in the alternative to filing of appeal. Rule 74 requires an application for review to be filed within a reasonable time. In the instant case, material time has elapsed since the delivery of the impugned judgment. The judgment was delivered on the 26th September 2025. The application was filed on the 12 th March 2026. The instant application JUDGMENT IN NAIROBI ELRC CAUSE NO. 185 OF 2019 10 | P a g e

page 10 of 19

was filed 6 months after delivery of judgment. By that time the decretal sum had been settled. The averment of the respondent was undisputed: it paid a total sum of Kshs. 2,642,204.80/= as the decretal amount plus an agreed sum of Kshs. 184,994/= as costs for the suit thereby fully satisfying the decree herein. Annexure marked "DBD-2" is a copy of the correspondence between the respondent’s advocates and the Claimant's Advocates, bank Cheques and M-Pesa message as proof of payment evidencing full settlement of the decretal sum and costs. 32. It is my finding that the application was not filed within a reasonable time. My finding is based on the fact that review is an option to appeal, and the appeal was due within 14 days of the decision under Rule 77 (2) of the Court of Appeal Rules. Comparing 14 days to 6 months, then it is obvious the application was not brought within a reasonable time, offending provisions of Rule 74 of the Court Rules,2024. It is a truism that litigation must come to an end. The applicant received payment as per the Decree, then instructed counsel to file for review of the very same judgment already satisfied. I find the application to be an abuse of court process and an offending rule that litigation must come to an end. Whether the application is merited. 33. The grounds of review under rule 74 are‘(a)if there is discovery of a new and important matter or evidence which, despite the exercise of due diligence, was not within the knowledge of that person or could not be produced by that person at the time when the decree was passed or the order made; (b)on account of some mistake or error apparent on the face of the record; (c)if the judgment or ruling requires clarification; or JUDGMENT IN NAIROBI ELRC CAUSE NO. 185 OF 2019 11 | P a g e

page 11 of 19

(d)for any other sufficient reason.’ 34. The crux of the application as per the grounds is as follows‘THAT this Court did not make any finding on the following items which were specifically pleaded and proved during the hearing and submissions, that is: a) Service dues b) Unpaid leave days and public holidays a sum of KES: 217, 279. c) Underpayment of Salaries @ KES: 1, 000 for the months of August 2017, April, June and July 2018 KES: 4, 000 d) Unpaid annual leave travel allowance for six years @ KES: 4, 400 which translates to KES: 26,400. e) Unpaid Salary for the months of August, September and October 2018 amounting to KES: 454,834. f) Damages arising from listing of the claimant with Credit Bureau. g) Issue on the commencement of interest on the award. d. THAT the failure by this Honourable Court to consider issues above, is an error apparent on the face of record, which act will warrant this Honourable to review its own judgment, pursuant to the above cited Provisions of the law.’ Whether it is an error apparent on the face of the record on the issue of the commencement of interest on the award. JUDGMENT IN NAIROBI ELRC CAUSE NO. 185 OF 2019 12 | P a g e

page 12 of 19

35. The applicant has produced sample judgments of the court to effect of having granted interest from date of filing suit. The court finds that this information does not qualify as discovery of a new and important matter or evidence which, despite the exercise of due diligence, was not within the knowledge of that person or could not be produced by that person at the time when the decree was passed or the order made. Those decisions were always available online and could have been produced. The production of the same at this stage amounts to challenge of merit of the decision on interest award which is not an issue for review but appeal. Interest is an issue of exercise of discretion and where a party is aggrieved with exercise of discretion the proper place to be is at the appellate court. On issue of Service dues 36. The claim before the court was of severance pay. The claimant had no claim of service pay. Parties are bound by their pleadings. The court finds that it comprehensively considered the issue in paragraph 38 of the decision (Onchwati v Karen Blixen Coffee Garden & Cottages Limited [2025] KEELRC 2530 (KLR) as follows‘Severance pay- the same is payable in termination through redundancy hence not available in the instant termination. The court rejected the invitation by the claimant to treat the claim as of service pay as submissions are not pleadings and a claim cannot be amended in the submissions. In any case the claimant was on NSSF as per the payslips and had not placed any evidence before the court to the contrary. The burden was on the claimant to prove that the deducted NSSF monies was not remitted by providing the a statement from the NSSF board. Section 35[5] &[6] of the Employment act states- "[5] An employee whose contract of service has been terminated under subsection [1][c] shall be entitled to service pay for every year worked, the terms of which shall be fixed.[6]This section shall not apply where an employee is JUDGMENT IN NAIROBI ELRC CAUSE NO. 185 OF 2019 13 | P a g e

page 13 of 19

a member of—[a]a registered pension or provident fund scheme under the Retirement Benefits Act; [b]a gratuity or service pay scheme established under a collective agreement;[c]any other scheme established and operated by an employer whose terms are more favourable than those of the service pay scheme established under this section; and[d]the National Social Security Fund." Service pay is not available for an employee registered by the employer under the NSSF. The claim is disallowed.’ 37. I perused the record and found that RW1 at hearing on issue told the court that they had NSSF and no retirement scheme. I reviewed the new evidence of NSSF statement and noted that no employer is indicated and further the statement indicated employment on 26th March 2026 meaning it was obtained post the judgment thus did not exist at time of the hearing. I find the document does not qualify as new evidence under Rule 74. issue of annual leave allowance. 38. The applicant submitted- the unpaid Leave travel allowance a sum of KES: 26, 400 is captured at paragraph 28 [d] of the Memorandum of claim. This Honourable Court in its decision never at all addressed its mind on the same at all; which is an error apparent on the face of record. This claim was in our written submission issue number [vi] where we submitted as follows: “….your ladyship, in this issue the claimant seeks for unpaid annual leave travel allowance for six [6] year at the rate of KES: 4,400/-’. 39. The court finds leave allowance was considered in detail in paragraph 39 of the judgment where the court held- JUDGMENT IN NAIROBI ELRC CAUSE NO. 185 OF 2019 14 | P a g e

page 14 of 19

‘On the annual leave allowance, the claimant had already proceeded on leave. The court found this was claim was an afterthought.’ There is no new evidence on the issue. Claim for unpaid salary for the months of August, September and October 2018 amounting To KES:454,834 40. The applicant submitted - the claimant raised it in his claim and in his written submissions. However, in the judgment which was delivered by this Honourable Court on the 26th September 2026 at holding number 40 the court held and we quote: - “…..on the claim of unpaid salary, the claimant produced his pay slip for September 2018. The respondent stated that the September salary was paid in October and that no salary was owed for October because he had already been terminated. The claimant filed a rejoinder but did not rebut the arguments. He also presented the equity bank statement showing salary deposit for August 2018, September 2018 and October 2018. The court found that the existence of salary arrears was not proven on a balance of probability…” The claimant submitted that in his supplementary affidavit at paragraph 6, he included a letter authored by the respondent agent, which the claimant later refused to sign. The cheque which had been drawn in his favour was therefore not delivered to him for due presentation to his bank. It is our submission that the payment for the three months was not made and so we urge this Honourable Court to allow this claim. 41. The Court finds that the prayer for salary arrears was considered in paragraph 40 as follows: ‘On the claim of unpaid salary, the claimant produced his payslip for September 2018. The respondent stated that the September salary was paid in October and that no salary was owed for October because he had already been terminated. The claimant filed a rejoinder but did not JUDGMENT IN NAIROBI ELRC CAUSE NO. 185 OF 2019 15 | P a g e

page 15 of 19

rebut these arguments. He also presented his Equity Bank statements showing salary deposits for August 2018, September 2018, and October 2018. The court found that the existence of salary arrears was not proven on the balance of probabilities.’ 42. The court was persuaded to agree with the respondent that the cheque now exhibited as “CO-4” is dated 31st December 2018, months before the suit was filed in 2019. A document in respect of which the Applicant claims personal knowledge of non-delivery since 2018 is, by definition, neither new nor undiscoverable. The ground is a plea for re-evaluation of the same issue. I decline to review my findings on salary arrears based on the said cheque. I am not persuaded it could not have been found and produced at the hearing despite diligence. Damages arising from listing of the claimant with the Credit Bureau 43. The claimant submitted - this Honourable Court in its judgment delivered on the 26th September 2026 at holding 40 affirmed that the respondent indeed deducted monies from the claimant’s salary which money was supposed to be remitted to NIC Bank to service a credit facility that the claimant had taken and so the Court awarded the claimant KES: 651, 754. The above action by the respondent failing to do the remittance of the money to the Bank; caused and or made the claimant to be listed with the Credit Bureau and as a result of that he suffered damage. The Court therefore having reached the above decision, it was incumbent upon this Honourable Court to award the claimant damages for the injuries he suffered; but instead, the court made this observation at the tail end of holding number 40 : - “………the Court declines the claim for general damages because the claimant did not undertake immediate steps to mitigate his loss after the breach; he was aware at all times the remittance was not done…..” The above-captioned finding by this Honourable Court was not accurate as the claimant, JUDGMENT IN NAIROBI ELRC CAUSE NO. 185 OF 2019 16 | P a g e

page 16 of 19

through his advocate, had raised these issues with the respondent immediately vide a demand letter dated the 29th day of August 2018. He also raised it vide several SMS at the supplementary List of Documents, page 4, on 27.6.2018 at 3:08pm and at Page 17 of 28.10.2023 1.03pm. The above demand letter is listed 1 in the claimant’s bundle of documents. The said letter was not contested by the respondent and that being the position; it is our submission that the Honourable Court erred in reaching the above decision. The said demand letter is further annexed as annexure marked CO “5” in the claimant’s supplementary affidavit sworn on the 7th day of April 2026 at paragraph 8 which we now invite this Honourable Court to appreciate. The claimant had proposed a figure of KES: 8, 000, 000 as being very reasonable. This court is urged to award the same. The proposed figures above were supported by the case of Otieno-Omuga & Ouma Advocates vs CFC Stanbic Bank Limited 2015, where the Court in this matter awarded KES 6,000,000 as damages. The applicant urged the court to award KES 8,000,000 as general damages for the reasons that the above relied case law was decided 10 years back and due to the inflation of the Kenyan Shilling, the proposed figure is reasonable. 44. The court finds that it considered the issue and held in paragraph 41 – ‘It is considered an unfair labor practice to deduct an employee's salary under checkoff and fail to remit it to the bank. The court declined the claim for general damages because the claimant did not take immediate steps to mitigate his losses after the breach; as an accountant, he was aware at all times that remittance was not being done.’ It is true there was a demand letter dated 29th November 20218 issued post-termination. That does not affect my finding. If I am wrong, an appeal is the best way to challenge the finding. JUDGMENT IN NAIROBI ELRC CAUSE NO. 185 OF 2019 17 | P a g e

page 17 of 19

45. Underpayment of Salaries @ KES: 1, 000 for the months of August 2017, April, June and July 2018 KES: 4, 000 – This is not in the final prayers of the claim, 46. In conclusion is find no merit on the grounds of review as all issues were considered contrary to the ground of review that – ‘THAT the failure by this Honourable Court to consider issues above,(listed prayers) is an error apparent on the face of record, which act will warrant this Honourable to review its own judgment, pursuant to the above cited Provisions of the law.’ 47. The application is held to have been brought outside reasonable time. It is without merit and is held as an afterthought, having been filed post-settlement of the decretal sum. Litigation must come to an end. 48. The application is dismissed with costs to the respondent. 49. It is so Ordered. DATED, SIGNED, AND DELIVERED VIRTUALLY AT NAIROBI THIS 25 TH DAY OF SEPTEMBER, 2026. JEMIMAH KELI, JUDGE. IN THE PRESENCE OF: Court Assistant: Otieno Applicant: Bwogara Respondent- Akinyi H/B Magambo JUDGMENT IN NAIROBI ELRC CAUSE NO. 185 OF 2019 18 | P a g e

page 18 of 19

JUDGMENT IN NAIROBI ELRC CAUSE NO. 185 OF 2019 19 | P a g e

page 19 of 19