Maina & another v Golden Lion International Limited

Labour Relations Court Case No. E214 OF 2022 Joseph Kimanzi v Golden Lion International Limited. 3. Pending the hearing and determination of this Application, this Honourable Court be pleased to review, vary and/or set aside the judgement delivered on 23rd July 2025 and the consequential orders. 4. This Honorable Court be pleased to grant other and/or further orders it deems t and just n the circumstances. 5. Costs of the Application be provided for. Respondent/Applicant’s Case 2. The Applicant avers that judgment in this matter was delivered on 23rd July 2025, however, upon careful review of the judgment, it became evident that the matter is ripe for review on the grounds of a mistake apparent on the face of the record, and that there exist sucient reasons for this Court to review the same. 3. The Applicant contends that the Court failed to consider its evidence demonstrating that the deductions arose from bounced cheques, delayed payments and fraudulent customers. 4. It avers that the parties agreed, through an oral contract, that these deductions would be recovered from commissions earned by the Claimants, and that the omission to evaluate this evidence, which was central to the dispute, resulted in ndings that are inconsistent with the record. 5. The Applicant further avers that the Court erred in invoking Section 19 of the Employment Act to nd that the deductions made were unlawful. It states that the Claimant averred that his basic salary was Kshs. 150,000.00, which amount, though paid to him, the Applicant contended was salary but nonetheless did not attract non-permissible deductions contrary to Section 19 of the Employment Act. 6. The Applicant avers that the Claimant expressly pleaded, and it is undisputed, that the bulk of his claim rested on unpaid commission. This implies that, aside from the claimed salary, which the Applicant refutes, the Claimant also earned commission which was paid separately on separate terms and conditions. 7. It further states that from the Claimant's own pleading and conrmation, the commission earned would vary every month depending on the sales made and on other agreed terms, including but not limited to non-payment by clients and bounced cheques. 8. It is the Applicant's case that the Court therefore erred when it found that the consolidated sum paid to the Claimant on a monthly basis constituted wages, and hence that all the deductions made by the Applicant as per the agreed terms and conditions were non-permissible deductions. 9. The Applicant avers that this is a mistake apparent on the face of the record which led the Court to arrive at a wrong determination. 10. The Applicant avers that it tendered unchallenged evidence supporting the lawful deductions, but the Court failed to analyse or assign any weight to that evidence. 11. It contends that this omission constitutes a material oversight, resulting in a judgment that does not reect the evidence before the Court. 12. On the award of leave, the Applicant asserts that the same was made without any evidential foundation. It states that the Claimants did not produce evidence demonstrating that they had not utilised their https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2761/eng@2026-10-06 2

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leave entitlements, and that the judgment does not indicate the basis upon which the Court determined leave was due. 13. The Applicant contends that in the absence of such evidence, and without proper evaluation of its case, the award was unjustied and constitutes sucient reason for review. 14. The Applicant further avers that the conclusion that the Claimants were employees is unsupported by proper reasoning. It states that although the Court referenced the control test, the judgment does not show how the indicators of the control test were applied to the evidence, and that the absence of analytical justication on this central issue amounts to an error apparent on the face of the record warranting review. 15. It is also the Applicant's case that the Court failed to consider and give eect to the oral contract that formed the basis of the parties' contractual relationship and expressly governed the commission deductions. 16. The Applicant contends that the omission to address this binding contractual term, which was central to the dispute, constitutes a material oversight and an error on the face of the record. 17. The Applicant asserts that, taken cumulatively, the misapplication of statutory law to a contractual arrangement, the failure to evaluate material evidence, the omission to consider the binding oral contract and the insucient reasoning on the nature of the employment relationship constitute sucient reason for the judgment to be reviewed in the interests of justice. 18. The Applicant avers that unless the application is heard and determined expeditiously, it risks suering irreparable prejudice arising from enforcement of a judgment based on mistakes apparent on the face of the record. 19. It therefore urges that it is in the interest of justice that the Application be heard without delay and the orders sought be granted. Claimant/Respondent’s Case 20. The application is opposed by the Claimant/Respondent through a replying adavit sworn by Michael Macharia Maina on 5th March 2026. 21. The Aant avers that he is the Claimant in this matter, which was consolidated with ELRC Case No. E214 of 2022, and that he is duly authorised by Joseph Kimanzi Musyoki to swear the adavit on his behalf, having annexed the authority marked MMM-1. 22. It is the Respondent's case that the application is devoid of merit and that the orders sought are not available in the instant matter. 23. He further avers that the application is contrary to and in violation of the doctrine of nality, as it invites the Court to sit on appeal of its own decision. 24. The Respondent avers that there is no error of law or of fact apparent on the face of the record which is amenable to review. It asserts that errors concerning the evaluation, analysis or weight of evidence, and the invocation of the Employment Act in the judgment, are not errors apparent on the face of the record but go to the merit of the decision, and are therefore only amenable to appellate review. 25. The Respondent contends that stay of execution is not warranted because no execution is ongoing or has ensued. It states that on 21st January 2026, the Deputy Registrar, without any right or https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2761/eng@2026-10-06 3

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authority, suspended taxation of the bill of costs pending the hearing and determination of the instant application, which renders execution impossible. 26. The Respondent further contends that stay of execution is inapposite in the circumstances since there is no pending appeal, and that the threshold for stay of execution, including substantial loss and security for the due performance of the decree, has not been met. It avers that in the event the Court is inclined to grant a stay, security should be deposited in a joint interest-earning account held by the advocates of both parties. 27. The Respondent asserts that the grounds for review of the judgment have not been met, as there is no discovery of new and important evidence, there is no mistake or error apparent on the face of the record as alleged, and no sucient reason has been demonstrated to warrant the orders sought. 28. The Respondent contends that the grounds in support of the prayer for review have been camouaged as errors or mistakes apparent on the face of the record when no such errors exist, and that the Applicant is inviting the Court to re-open the judgment and re-evaluate the evidence and the law on substance and merit, which is not within the purview of an application for review. 29. It avers that an error apparent on the face of the record is one which is prima facie visible and does not require any detailed examination, which is not the case in this matter. 30. The Respondent avers that the matters alleged to be errors on the face of the record require a reevaluation of evidence, which is appellate in nature and outside the jurisdiction of this Court. 31. The Respondent states that the Applicant is aggrieved by an alleged error of law in the Court's invocation of Section 19 of the Employment Act. It contends that an error in the application of the law in a judgment is not an error apparent on the face of the record but requires a merit re-evaluation on appeal. 32. It is the Respondent’s case that the Applicant's grievance with the Court's alleged failure to analyse, evaluate and assign weight to its evidence is not an error apparent on the face of the record, and can only be addressed on appeal. 33. The Respondent states that the Applicant's complaint that leave was awarded without an evidential foundation and without proper evaluation of its case and evidence is a matter for the appellate court and not the same court, as invited by the Applicant. 34. The Respondent avers that the Applicant's grievance that the Court concluded that the Claimants were employees without evidence or support can only be re-evaluated by an appellate court and is not subject to review. 35. The Respondent contends that the Applicant's grievances on the Court's alleged failure to evaluate material evidence, misapplication of statutory law, omission to consider the binding oral contract and insucient reasoning can only be reopened by an appellate court, being the only court with jurisdiction to re-evaluate evidence and arrive at a contrary nding. 36. The Respondent asserts that the request for review is therefore mistaken, an abuse of the court process and an attempt to make the Court sit on appeal of its own decision, which is outside the jurisdiction of the Court under Rule 73 of the Employment and Labour Relations Court (Procedure) Rules. 37. The Respondent avers that upon delivery of the judgment, the Court became functus ocio on the issues raised in the Application, which concern the re-evaluation of evidence and the application of the law. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2761/eng@2026-10-06 4

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Respondent/Applicant’s Submissions 38. The Applicant identied two issues for determination: whether there exists an error apparent on the face of the record and/or sucient reason to warrant review, variation or setting aside of the Judgment delivered on 23rd July 2025, and whether an order of stay of execution ought to issue. 39. On the rst issue, the Respondent/Applicant submitted that its case throughout the proceedings was that the relationship was a principal-agent, commission-based arrangement, under which the Claimants sourced buyers for its dry cell batteries within East Africa, earned commission at Kshs. 86 per carton (or as agreed) payable only upon collection, and bore responsibility for their clients, including deductions for bounced cheques, payments delayed beyond 14 days and fraudulent or bad debts. 40. The Applicant anchored its case on the evidence of its Finance Manager, Nicholas Mutinda, whose witness statement dated 7th August 2023 and accompanying documents, it submitted, set out the nature of the parties' engagement, the commission structure, the allocation of commercial risk and the rationale for the issuance of payslips. 41. It was submitted that the payslips relied upon by the Claimants were not manifestations of an employment relationship but were issued purely as an accommodation to assist the Claimants in obtaining nancial facilities from third-party lenders, and that this explanation was never controverted. 42. It is the Applicant’s submission that the replying adavit sworn by Michael Macharia Maina on 5th March 2026 adduces no evidence in rebuttal, and instead proceeds on the misguided premise that the application invites this Court to sit on appeal against its own judgment. 43. The Applicant submitted that the jurisdiction of this Court to review its decisions is anchored in Section 16 of the Employment and Labour Relations Court Act and Rules 73 and 74 of the Employment and Labour Relations Court (Procedure) Rules, 2024, and that review is available where there is an error apparent on the face of the record or any other sucient reason. Reliance was placed on National Bank of Kenya Ltd v Njau [1997] KECA 71 (KLR), where the Court of Appeal held that:"A review may be granted whenever the court considers that it is necessary to correct an apparent error or omission on the part of the court. The error or omission must be self-evident and should not require an elaborate argument to be established." 44. The Applicant argued that the Judgment discloses several such errors. Firstly, it submitted that while the Court found the deductions unlawful, it did so without any discernible analysis of the evidence explaining the contractual basis upon which the deductions were made, and that the evidence of Nicholas Mutinda on the allocation of commercial risk, the commission structure and the circumstances under which deductions arose was neither evaluated nor reconciled with the conclusions reached. 45. It conceded that the Court is not bound to accept any particular evidence, but argued that the Court is obliged to consider material evidence, and that where evidence directed at the central issue in controversy is not addressed at all, the determination becomes susceptible to review. 46. Secondly, the Applicant submitted that the clearest and most consequential error lies in the award of Kshs. 32,629,830 as reimbursement of unlawful deductions, which it argued rests on a fundamental misconception of the nature of the parties' relationship and the legal character of the payments. 47. It was submitted that the Court proceeded on the premise that the deductions were made from earned salary or wages, when the uncontested evidence was that the Claimants were commission-based sales agents whose remuneration was neither xed nor guaranteed, and who earned commission only https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2761/eng@2026-10-06 5

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upon successful realisation of sales proceeds from customers introduced and managed by them. The Applicant argued that the parties expressly agreed that losses from dishonoured cheques, payments outstanding beyond the agreed credit period and fraudulent transactions would be accounted for before computation and payment of commission. 48. The Applicant further submitted that the evidence of both parties shows that the commission deductions date back to 2013, and that throughout this period the Claimants never raised any complaint or grievance, nor produced evidence of having challenged the deductions prior to ling suit in 2022. It contended that this prolonged silence and acquiescence demonstrates that the Claimants were fully aware of and had accepted the deductions as part of the agreed commission structure, and that the deductions were therefore justied, contractually sanctioned and consistently applied without objection. 49. It is the Applicant's argument that the impugned sums were not deductions from accrued earnings at all, but part of the agreed commission-calculation mechanism, since the commission payable could only be ascertained after accounting for customer defaults, dishonoured cheques, charge-backs and other losses within the Claimants' portfolios. 50. The Applicant submitted that a deduction presupposes an accrued entitlement from which a sum is subtracted, and that the disputed sums never crystallized into earned commission because the contractual conditions precedent to payment had not been satised. In its view, the Court conated two legally distinct concepts, namely deduction from wages already earned and determination of net commission payable under a commercial agency arrangement, and in doing so converted contingent commission into guaranteed remuneration and shifted the entire commercial risk of customer default to the Applicant. 51. The Applicant further submitted that if the commission was indeed guaranteed income, the fact that it was not taxed at that amount would itself be a compelling argument to the contrary. It contended that the Court thereby reconstituted the parties' bargain and imposed obligations that were neither pleaded as contractual terms nor supported by the evidence. 52. The Applicant argued that the treatment of uctuating commission earnings as xed statutory wages, and the consequent invocation of Section 19(1) of the Employment Act, 2007, constitutes a patent misdirection apparent on the face of the record, since commissions are by nature performance-based earnings whose quantum depends on commercial results and cannot be equated with xed monthly wages. 53. It was further submitted that Section 19 itself recognizes circumstances in which deductions may lawfully be eected, including those authorized by agreement between the parties and those arising from losses attributable to the conduct of the employee or agent, yet the judgment treated every deduction as per se unlawful without examining the contractual framework or the evidence of the Claimants' acceptance of commercial risk. 54. It argued that Courts recognize the legitimacy of deductions from commission earnings where such deductions were contractually justied and formed part of the agreed remuneration framework. It is the Applicant submission that the impugned Judgment departed from this principle without explanation. 55. Thirdly, on the award of Kshs. 840,000 in respect of 168 leave days, the Applicant submitted that it is unable to discern from the Judgment the evidentiary basis for the award, as the record does not reveal evidence that leave was due, accrued and remained untaken. It argued that an award must rest https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2761/eng@2026-10-06 6

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on evidence and legal principle, and where neither is discernible from the record, the order becomes amenable to review. 56. Reliance was placed on Batian Security Company Ltd v Gatinya [2023] KEELRC 2266 (KLR), where the Court set aside an award of leave pay on the basis that the trial court had no basis for the reliance it placed in making the award. 57. Fourthly, the Applicant submitted that although the Judgment referred to the control test in nding that the Claimants were employees, it did not demonstrate how the indicators of that test were applied to the evidence, which showed that the Claimants sourced their own customers, organised their own work schedules and bore substantial commercial risk. 58. The Applicant further submitted that the authorities it relied on at trial, including John Wachira Githongo v Soyama Hardware Limited (2017) eKLR, Everret Aviation Ltd v Kenya Revenue Authority [2013] eKLR, Wambugu Ndirangu v 2NK Sacco Society Ltd [2019] eKLR and Grain Pro Kenya Inc. Ltd v Andrew Walthaka Kiragu [2019] eKLR, were directed precisely at the distinction between employment and independent contracting, yet the Judgment does not engage with them. 59. It is the Applicant’s submission that its concern is not that the Court reached an unfavourable conclusion, but that the route by which the conclusion was reached is not evident from the record. 60. Fifthly, the Applicant submitted that the Judgment fails to determine the legal eect of the parties' oral agreement governing commission payments and the allocation of commercial risk, and contains no determination of whether the agreement existed, whether it was binding, whether it governed commission computation or whether the disputed losses were recoverable under it. 61. It argued that the Court simply assumed the sums deducted were salary deductions, and that had it considered the commission structure and the agreed allocation of risk, it could not properly have found the sums to be unlawful deductions from wages. 62. The Applicant maintained that these errors do not call for an appellate re-evaluation of contested facts, but are patent misdirections evident from the Judgment itself when read alongside the pleadings, witness statements and documentary evidence, and that they go to the root of the award and have occasioned a substantial miscarriage of justice. 63. It therefore submitted that both limbs contemplated under Section 16 of the Employment and Labour Relations Court Act and Rules 73 and 74 have been satised, and urged the Court to review, vary and/ or set aside the Judgment and the consequential orders. 64. On the second issue, the Applicant submitted that the decretal sum exceeds Kshs. 35 million, and that execution before determination of the Application would expose it to substantial prejudice and render the review proceedings nugatory. It argued that the principles governing stay pending review are substantially similar to those governing stay pending appeal, namely substantial loss, promptitude and willingness to provide security, and that the Application was brought without unreasonable delay and it has expressed willingness to furnish such security as the Court may deem appropriate. Reliance was placed on Ali v Grain Industries Limited [2025] KEELRC 1331 (KLR), where the Court granted stay pending determination of review proceedings upon demonstration of substantial loss. Claimants/Respondents’ Submissions 65. The Respondents submitted on three issues for determination: whether the Application passes the legal test for review or is a disguised appeal, whether the stay sought should be granted, and whether the Applicant should bear the costs of the Application. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2761/eng@2026-10-06 7

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66. 67. On the rst issue, the Respondents submitted that the applicable provision is Rule 74(1) of the Employment and Labour Relations Court (Procedure) Rules, 2024, which provides that: "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 clarication; or (d) for any other sucient reason." The Respondents argued that the Applicant has invoked limbs (b) and (d) but has established neither. On the threshold for an error apparent on the face of the record, they relied on National Bank Of Kenya Limited v Ndungu Njau [1997] eKLR, where the Court of Appeal held that: "A review may be granted whenever the court considers that it is necessary to correct an apparent error or omission on the part of the court. The error or omission must be selfevident and should not require an elaborate argument to be established. It will not be a sucient ground for review that another judge could have taken a dierent view of the matter. Nor can it be a ground for review that the court proceeded on an incorrect exposition of the law and reached an erroneous conclusion of law. Misconstruing a statute or other provision of law cannot be a ground for review." 68. The Respondents further submitted that the Court of Appeal in the same decision held that an issue which was hotly contested at trial cannot be reviewed by the court that adjudicated on it. The Respondents also relied on Multichoice (Kenya) Ltd v Wananchi Group (Kenya) Limited & 2 Others [2020] eKLR, where the Court of Appeal held that: "It bears emphasising that the phrase 'mistake or error apparent' by its very connotation conveys the fact that the error envisaged is one which is evident per se from the record and does not require detailed examination, scrutiny and elucidation either of the facts or the legal position. It is prima facie visible. It must relate to an error of inadvertence, one which strikes one on merely looking at the record." 69. It is the Respondents' submission that each of the ve grounds advanced by the Applicant must be tested against this settled threshold, and not against the Applicant's own characterization of the Judgment as containing errors. 70. On the alleged failure to evaluate material and uncontroverted evidence, the Respondents argued that the Applicant's complaint that the Judgment did not undertake a discernible analysis of Nicholas Mutinda's evidence, by its own framing, invites the Court to revisit how it weighed the evidence. 71. They submitted that whether the Court gave a witness's evidence sucient weight, or expressly reconciled every item of evidence with its conclusions, is a question of the adequacy of reasoning on a contested issue of fact, which is the substance of an appeal. 72. The Respondents further argued that Republic v Minister for Lands and Settlement & 2 others [2022] KEELRC 3845 (KLR) undermines rather than supports the Applicant's case, since in that matter the https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2761/eng@2026-10-06 8

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interested party sought review on the very ground now advanced, that the court failed to consider his replying adavit and evidence, and the court dismissed the application with costs, holding that submissions are not evidence, that there was no error apparent on the face of the record and, citing National Bank of Kenya Ltd v Ndungu Njau, that a hotly contested issue cannot be reviewed by the same court. 73. On the alleged misapplication of Section 19 of the Employment Act, the Respondents submitted that this ground is the clearest illustration of an appeal disguised as a review, as the Applicant invites the Court to revisit the legal characterization of the parties' relationship, re-examine whether the disputed sums were earned commission or deductions from wages, re-assess whether conditions precedent to payment of commission were satised and reconsider whether Section 19 was correctly invoked, all of which go to the merits. 74. They argued that the Applicant's own authority, National Bank of Kenya Ltd v Njau, concedes that misconstruing a statute or reaching an erroneous conclusion of law is not a ground for review, and that the Applicant cannot cite that principle while devoting extensive submissions to arguing that Section 19 was misapplied. 75. The Respondents contended that the very fact that the Applicant requires fourteen substantive paragraphs of argument on contractual interpretation, evidential inferences and statutory construction to establish the alleged error is proof that the error is not apparent on the face of the record within the meaning of Zablon Mokua and MultiChoice. They added that the Court's treatment of the relationship as giving rise to wages under Section 19, whether right or wrong, was a conscious determination on a hotly contested issue and is not amenable to review. 76. On the award of leave pay, the Respondents submitted that the Applicant's own authority, Batian Security Company Ltd v Gatinya [2023] KEELRC 2266 (KLR), defeats its argument, as it was decided on a rst appeal where the appellate court was exercising its jurisdiction to re-evaluate evidence and draw its own conclusions, a jurisdiction this Court does not possess when reviewing its own judgment. They maintained that whether the award of leave pay was adequately supported by the evidence is a question of suciency of proof which, if wrongly decided, lies in appeal and not review. 77. On the nding of employee status, the Respondents submitted that the authorities cited by the Applicant, namely John Wachira Githongo v Soyama Hardware Limited, Everret Aviation Ltd v Kenya Revenue Authority, Wambugu Ndirangu v 2NK Sacco Society Ltd and Grain Pro Kenya Inc. Ltd v Andrew Waithaka Kiragu, go to the substantive test for distinguishing a contract of service from a contract for services, and none concerns or relaxes the threshold for review under Rule 74. 78. They argued that the complaint that the Court did not suciently demonstrate its application of the control test is, on the Applicant's own characterization, a complaint about the adequacy of reasoning on a contested question of mixed fact and law, which is a ground of appeal, and that the question for the Court is not whether the test was correctly applied but whether any error in its application is selfevident from the record without argument. 79. On the alleged failure to address the oral contract, the Respondents submitted that the Applicant is inviting the Court to make ndings of fact and law that only a trial court or an appellate court may properly make. They argued that the existence of the oral contract and its legal eect were squarely contested at trial, and the Court's treatment of those issues, whatever its merits, was a conscious determination of a hotly contested matter which, on the authority of National Bank of Kenya Ltd v Njau, is appealable and not reviewable. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2761/eng@2026-10-06 9

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80. The Respondents further submittedd that Kenya National Examinations Council v Republic Exparte Georey Gathenji Njoroge & 9 Others [1997] eKLR has no bearing on the question before the Court, being a judicial review decision on the scope of the order of mandamus against an administrative body under what was then Order 53 of the Civil Procedure Rules, and that it says nothing about the threshold for review of a court's own judgment under Rule 74. They reasoned that the Applicant's reliance on it illustrates the absence of authority genuinely supporting a self-evident error, as opposed to a disagreement with the substance of the Judgment. 81. The Respondents submitted that, taken together, the Applicant's submissions conrm that the application invites the Court to re-open the Judgment and re-try the cause, pointing to the Applicant's own language inviting the Court to revisit discernible analysis, to consider whether indicators of the control test were applied to the evidence, and to determine afresh whether an oral contract existed and governed the relationship. 82. It is the Respondents’ submission that once the Judgment of 23rd July 2025 was delivered, it became nal and the Court became functus ocio on the matters it determined, and that the rule is not a technicality but exists to ensure that litigation comes to a denite end and that parties do not get a second opportunity to re-argue a lost case before the court that heard it. 83. The Respondents maintained that the four grounds under Rule 74(1) are independent gateways, and that where establishing the alleged error requires the long-drawn process of reasoning held in Zablon Mokua to be incompatible with review, the Application must fail. 84. On the second issue, the Respondents submitted that once the prayer for review fails, there is no basis in law to grant a stay of execution. They argued that the Applicant's submissions on stay amount to bare assertion, as no evidence was tendered of its nancial position, its capacity to satisfy the decree or the specic nature of the prejudice alleged, and that a bare willingness to furnish unspecied security, without an actual tender, does not satisfy the requirement of security for the due performance of the decree. 85. Reliance was placed on RWW v EKW [2019] eKLR, where the Court of Appeal held that: "An applicant must do more than merely allege substantial loss. The court requires cogent evidence establishing the nature, extent and irreversibility of the loss that would be suered if stay is not granted. Mere apprehension, unsupported by evidence, is insucient." 86. The Respondents further argued that the Applicant's authority on stay, Ali v Grain Industries Limited [2025] KEELRC 1331 (KLR), does not assist it, since in that matter the applicant had actually deposited the contested decretal sum in court as security and demonstrated through unrebutted evidence that the decree holder lacked the means to refund the sum. 87. They submitted that the Applicant here has neither deposited any sum nor demonstrated the Respondents' inability to refund, and has oered only a generalized willingness to furnish security. Without prejudice to their position that the Application be dismissed, the Respondents urged that should the Court be inclined to grant a stay, it be conditional upon the Applicant depositing the entire decretal sum, together with accrued interest and the costs of the suit, in a joint interest-earning account in the names of the advocates for both parties, pending determination of the Application. 88. On costs, the Respondents submitted that the Applicant has burdened the Court with a needless application, led knowing it has no merit and simply to interfere with their rights as decree holders under a valid judgment, and that costs follow the event. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2761/eng@2026-10-06 10

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89. It is the Respondents submission that the Applicant's submissions, far from curing the defects identied in the replying adavit, conrm that the Application is an appeal against the merits dressed in the language of review, as none of the ve grounds discloses a self-evident error within Rule 74(1) (b) or amounts to any other sucient reason within Rule 74(1)(d). 90. They further submitted that the Applicant has not satised the conjunctive conditions for stay, having neither tendered cogent evidence of substantial loss nor furnished security. 91. I have examined all the averments and submissions of the parties herein. The applicant seeks orders of review of this court’s judgment based on the ground that this court failed to consider its evidence and on the ground that leave was granted by court without any evidential foundation. They also aver that the conclusion that the claimants were employees is unsupported by proper reasoning. 92. My consideration of the grounds upon which this application is promised shows that the applicants are calling upon this court to reopen the case, reconsider the evidence, analyze it again and make a determination. 93. It is indeed not in the province of this court when considering a review to do what the applicants are asking this court to do. The applicants are in my view asking this court to sit on appeal on its judgment which is a reserve for the Court of Appeal. I decline this invitation and nd this application not merited. I dismiss this application accordingly. Costs in the cause. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 6TH DAY OF OCTOBER 2026. HELLEN WASILWA JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2761/eng@2026-10-06 11

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