1.On 27th July 2023, I entered judgment in favour of the Grievant as follows:a.12 months’ salary in compensation……………………………..Kshs. 366,828b.1 month’s salary in lieu of notice…………………………………………….30,569c.Salary for 11 days in February 2013 (30,569/30* 11)………………11,209d.Leave pay for 22.5 days (30,569/30* 22.5)………………………………22,927e.Service pay for 9 years (30,569/30*15*9)……………………………..137,561Total……………………………………………………………………………………569,094
2.Subsequently, the Respondent filed a Notice of Motion dated 8th August 2023, seeking review and setting aside of the judgment.
3.The Motion is supported by an affidavit sworn by the Respondent’s Human Resource Manager, Peris Oloo and is based on the following grounds:a.That there is an irregularity on the face of the record pursuant to the judgment dated 27th July 2023. The judgment is irregular because the Court did not consider that during the production of the Grievant’s evidence in chief and his subsequent cross examination, the Grievant admitted having been paid all his terminal dues, including leave pay and pay for days worked in February 2023 in the cumulative sum of Kshs. 34,136;b.That the Court erroneously found that the Grievant was entitled to an award for service pay in the sum of Kshs. 137,561 while the Grievant failed to prove that any such amount was due and payable to him;c.That despite the Respondent’s request to the Union to mutually consider the efficacy of the judgment, the Union declined and instead insisted that the Respondent must pay the entire decretal sum;d.That the said errors on the face of the record are sufficient reasons to enable the Court to consider and grant the orders sought in the Notice of Motion;e.That the Respondent is aggrieved by the judgment of the Court and the application prima facie raises legal and factual issues that would reasonably cause the Court to stay execution of the judgment pending review of the judgment on the grounds inter alia that there is discovery of new and important matter of evidence which could not have been produced at the time of the hearing of the suit on 24th January 2023;f.That in the meantime, the Respondent has paid the Grievant Kshs. 397,397 being partial payment of the decretal sum of Kshs. 569,094. This payment represents the award made for compensation for unfair termination (Kshs. 366,828) and one month’s salary in lieu of notice (Kshs. 30,569);g.That the Respondent’s partial payment of the decretal sum is a clear demonstration that the Respondent is acting in good faith;h.That in order to strike a proportionate balance that preserves the adjudicative authority of the Court, while ensuring that no party is unduly prejudiced, it is only fair and just that the orders sought are granted;i.That the consequences of the judgment will unjustly enrich the Claimant despite the Grievant’s admission that he had received his terminal dues and his failure to prove his entitlement to service pay as required under the relevant law;j.That it is only fair and just in the circumstances that the orders sought be granted.
4.The Claimant filed a Reply dated 30th October 2023 by which it accuses the Respondent of shifting the burden of proof to the Grievant. The Claimant relies on Section 74(1) of the Employment Act, which places the responsibility of keeping employment records on the employer.
5.The Motion was urged by way of written submissions. In its submissions dated 25th October 2023, the Respondent reiterates its assertion that during the hearing, the Grievant admitted having been paid his terminal dues. The Respondent therefore faults the Court for allegedly failing to take the Grievant’s admission into account, which the Respondent terms as an error apparent on the face of the record.
6.The Respondent further faults the Court for making an award for service pay, which claim the Respondent contends, was not proved. In support of its applications on this limb of the judgment, the Respondent sought to produce the Grievant’s NSSF Statement dated 1st August 2023.
7.In its submissions dated 11th September 2023, the Claimant states that the Respondent has not established any ground for review of the judgment of the Court delivered on 27th July 2023.
9.Rule 33(1) of the Procedure Rules provides as follows:
10.By its Motion, the Respondent invites the Court not only to review its judgment dated 27th July 2023, but to set it aside. The Respondent’s dissatisfaction with the judgment arises from the awards for leave pay, service pay and salary for days worked in February 2013.
11.The Respondent states that the judgment of this Court is irregular first, because the Grievant allegedly admitted in evidence that he was paid his terminal dues and second, because he did not adduce any evidence to support his claim for service pay.
12.The Respondent terms the award on leave pay and salary for days worked as an error on the face of the record. It is now well settled that the window for review on this ground cannot be used as an opportunity for the Court to have a second look at its own decision; rather, its purpose is to facilitate correction of obvious errors that are apparent on the record.
13.This position was affirmed in National Bank of Kenya Limited v Ndungu Njau  eKLR where it was held:
14.The Court of Appeal, in its decision Nyamogo and Nyamogo Advocates v Kogo  EA 173, pronounced itself on this issue in the following terms:
15.In similar fashion, in Francis Njoroge v Stephen Maina Kamore  eKLR it was held that a wrong view on an issue may be a ground for appeal but certainly not a ground for review.
16.In this case, the Respondent faults the finding by the Court that the Grievant is entitled to leave pay, service pay and salary for days worked in February 2013. In urging its case, the Respondent relies on an alleged admission by the Grievant in his testimony before the Court.
17.Were the Court to be persuaded by the Respondent’s argument, it would have to take a second look at the Grievant’s testimony. Such a move would amount to a retrial and not a review. In reaching this conclusion, I am bolstered by the Respondent’s attempt to introduce new evidence in the form of an NSSF Statement.
18.On the whole, I find that the Respondent’s Notice of Motion is not an application for review but an invitation to the Court to have a second look at a case on which it has already rendered itself. This Court has no such powers.
19.The Respondent’s Notice of Motion dated 8th August 2023 is therefore declined.
20.The interim orders granted on 11th August 2023 are vacated.
21.Each party will bear their own costs.