Shadrack Kipkemboi Atuga v Saifee Chemicals Limited

a) That, the court be pleased to review the decree and direct that the consent judgment on liability be reflected in the decree. b) That, the costs of this application be in the cause. 2. The Motion was brought under Order 45 rule 1 of the civil procedure rules, section 80 (a) & (b) and 63 (e) of the Civil procedure Act and it is supported by an Affidavit sworn by the respondent’s Advocate Mr. Jackson Omwenga, on 16 th February 2026. 3. The Motion was opposed by the claimant through a Replying Affidavit sworn by his Advocate Ms. Beth Njeru on 9th March 2026. Thereafter the Motion was disposed of by written submissions. Facts 1. The claimant was employed by the respondent and in the course of his duties he was exposed to chemicals that affected his eye. As a result, he was dismissed from employment and he sued the employer in this suit. ELRC CAUSE RULING NO. 510 OF 2018 PAGE 2

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2. On 22nd April 2025, the parties agreed to share liability with respect to the work Injury claim in the ratio of 25:75 in favour of the Claimant/Respondent. This consent was duly recorded and adopted by the Court. 3. On 24th July 2025, this Court delivered its judgment in the matter. At paragraph 27 of the judgment, the Court noted the consent on apportionment of liability recorded on 22 nd April 2025 and stated that it would sidestep the issue of liability and proceed to determine the quantum of damages due to the Claimant. 4. The Court, entered judgment in favour of the Claimant as follows: a) 6 months' salary in compensation …………….Kshs. 105,000 b) 1 month's salary in lieu of notice ……………..….Kshs. 17,500 c) General damages ………………………………….. …..Kshs. 200,000 d) Special damages ……………………………………….…… Kshs. 9,580 ELRC CAUSE RULING NO. 510 OF 2018 PAGE 3

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Total Kshs. 332,080 5. The court further awarded service pay of Kshs. 35,000 but omitted the award from the impugned judgment. This omission was also reflected in the resultant Decree. 6. On 30th July 2025, the Claimant filed a Party and Party Bill of Costs. On 12th January 2026, the Taxing Officer taxed the Bill of Costs in the sum of Kshs. 194,500. 7. By a letter dated 9th December 2025, the Respondent/Applicant's counsel informed the Claimant's counsel that the outstanding balance of the decretal sum plus accrued interests and taxed costs, according to their calculation, stood at Kshs. 181,539 as at 9 th December 2025. The Claimant/Respondent's counsel responded via email on 2nd February 2026 and agreed to the figure of Kshs. 181,539 even though they disputed the reasoning therein. 8. On 4th February 2026, the Respondent/Applicant forwarded a cheque in the sum of Kshs. 129,550 to the Claimant's counsel, which was in partial settlement. ELRC CAUSE RULING NO. 510 OF 2018 PAGE 4

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9. The Respondent/Applicant has made the following payments to the Claimant: i. 22nd September 2025 Kshs. 159,580 ii. 9th December 2025 Kshs. 84,466 iii. 2nd January 2026 Kshs. 110,034 iv. 4th February 2026 Kshs. 129,550 Total Kshs. 483,630 10. By the instant Notice of Motion, the applicant seeks review of the Decree to reflect the consent judgment on liability at 25:75. It contends that the Court inadvertently failed to properly account for the Claimant's 25% contributory liability, equivalent to Kshs. 50,000 (being 25% of Kshs. 200,000), and that the net decretal sum ought to be Kshs. 282,080 as opposed to Kshs. 332,080. 11. The Respondent/Applicant also contends that upon taking the taxed costs of Kshs. 194,500 into account, the total decretal sum payable to the Claimant/Respondent ought to be Kshs. 476,580, being the aggregate of Kshs. 282,080 and Kshs. 194,500. ELRC CAUSE RULING NO. 510 OF 2018 PAGE 5

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12. The Respondent/Applicant asserts that it has settled the decretal sum in full, having paid a total of Kshs. 483,630, and that no further sums remain due and owing to the Claimant. 13. The Claimant opposes the application and contends that the Court, in awarding the sum of Kshs. 200,000 in general damages at paragraph 33 of the judgment, already considered and accounted for the agreed liability apportionment of 25:75 and that any alteration would amount to double deduction. 14. The Claimant further contends that the only issue that requires correction is a clear clerical error of omission in the concluding paragraph of the judgment and the Decree, which failed to include the sum of Kshs. 35,000 awarded as service pay at paragraph 35 of the judgment. 15. The Claimant acknowledges receipt of the total sum of Kshs. 483,630 from the Respondent/Applicant and submits that once the error of omission is corrected, the final decretal sum payable will be Kshs. 367,080 (Kshs. 332,080 + Kshs. 35,000). ELRC CAUSE RULING NO. 510 OF 2018 PAGE 6

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16. The Claimant further submits that the outstanding balance owed to her stands at Kshs. 77,950 (being the difference between Kshs. 483,630 paid and Kshs. 367,080 decretal sum plus Kshs. 194,500 costs = Kshs. 561,580), which sum continues to accrue interest at court rates from the date of the last installment paid until paid in full. 17. I have considered the Notice of Motion dated 16 th February 2026, the rival Affidavits and the submissions filed. The main issue for determination is whether the court should review the impugned judgment/decree as prayed. Analysis 18. The Respondent/Applicant brings this application pursuant to Order 45 Rule 1 of the Civil Procedure Rules, 2010. The provision stipulates as follows: "(1) Any person considering himself aggrieved — ELRC CAUSE RULING NO. 510 OF 2018 PAGE 7

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(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or (b) by a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay." 19. The above rule is akin to Rule 74(1) of the Employment and Labour Relations Court Procedure Rules. 20. The Respondent/Applicant inadvertently ELRC CAUSE RULING NO. contends failed to properly 510 OF 2018 that account this Court for the PAGE 8

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Claimant/Respondent's 25% contributory liability in the final decree and that this constitutes an error apparent on the face of the record warranting review. 21. I have perused the judgment delivered on 24 th July 2025. At paragraph 27 of the judgment, the Court expressly stated as follows:"By virtue of the consent on apportionment of liability recorded before me on 22nd April 2025, the issue of liability was settled. I will therefore sidestep this issue and proceed to determine the quantum of damages due to the Claimant, taking into account the agreed apportionment of 25% (Claimant) and 75% (Respondent)." 22. At paragraph 33 of the judgment, the Court stated as follows: "Taking into account the agreed contributory negligence as against the Claimant and the factor of inflation, I award him Kshs. 200,000 in general damages." ELRC CAUSE RULING NO. 510 OF 2018 PAGE 9

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23. It is clear from the above that the Court was fully aware of the consent on apportionment of liability recorded on 22 nd April 2025 and expressly stated that it would take into account the agreed apportionment in determining the quantum of damages. The Court then proceeded to award Kshs. 200,000 in general damages, expressly stating that it had taken into account the agreed contributory negligence. 24. I find that the Court considered and took into account the agreed liability apportionment damages of Kshs. 200,000. in awarding general There is therefore no error apparent on the face of the record that would warrant review of the Decree as prayed by the applicant. However, I must observe that the best way for a trial court to deal with a case of this nature is to assess the 100% quantum of damages and then subject it to the contributory liability as agreed between the parties. 25. On the other hand, the court’s attention has been drawn by the Claimant that the decree requires correction of a clear clerical error of omission in paragraph 35 of the ELRC CAUSE RULING NO. 510 OF 2018 PAGE 10

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judgment which failed to include the sum of Kshs. 35,000 awarded to the Claimant as service pay. 26. I have perused paragraph 35 of the impugned judgment, and it is true that it states as follows:"The claim for service pay in the sum of Kshs. 35,000 was admitted and is therefore payable." 27. However, at paragraph 36 of the judgment, the Court entered judgment in favour of the Claimant/Respondent as follows:a) 6 months' salary in compensation Kshs. 105,000 b) 1 month's salary in lieu of notice Kshs. 17,500 c) General damages Kshs. 200,000 d) Special damages Kshs. 9,580 Total Kshs. 332,080 28. The award for service pay of Kshs. 35,000, which the Court found to have been admitted and payable at paragraph 35, was erroneously omitted from the concluding orders at paragraph 36 of the judgment and the resultant Decree. 29. Section 99 of the Civil Procedure Act provides as follows: - ELRC CAUSE RULING NO. 510 OF 2018 PAGE 11

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"Clerical or arithmetical mistakes in judgments, decrees or orders, or errors arising therein from any accidental slip or omission, may at any time be corrected by the court either of its own motion or on the application of any of the parties." 30. The Court in Mwangih v Nairobi City County Government & 5 others (Environment and Land Case E397 of 2024) [2026] KEELC 1220 (KLR) (27 February 2026) (Ruling), cited by the Claimant, held at paragraphs 9 and 11 as follows regarding Section 99 of the civil Procedure Act: "Correcting the error would merely align the ruling and order with the Court's clear and undisputed intention at the time the ruling was delivered." 31. I find that the correction sought by the Claimant does not alter the substance of the decision but merely aligns the Decree with the Court's clear and undisputed intention as expressed at paragraph 35 of the judgment. The Court ELRC CAUSE RULING NO. 510 OF 2018 PAGE 12

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had expressly found that the claim for service pay was admitted and payable and it was an accidental omission that it was not included in the final orders. 32. Section 99 of the Civil Procedure Act empowers this Court to correct such clerical errors at any time, either on its own motion or on the application by any party. 33. I therefore find that the Decree should be corrected to include the sum of Kshs. 35,000 awarded as service pay, bringing the total decretal sum to Kshs. 367,080. Since the claimant has benefited from the failed application by the respondent judgment Debtor, I will not condemn anyone to pay costs. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 8TH DAY OF OCTOBER, 2026. ONESMUS MAKAU JUDGE Appearance: Njeru for Claimant Omwenga for Respondent ELRC CAUSE RULING NO. 510 OF 2018 PAGE 13

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