Timaflor Limited v Ndai (Cause E013 of 2023 & E004 of 2024 (Consolidated)) [2025] KEELRC 1470 (KLR)
The bottom line
#Kenya's Employment Court corrected its own judgment on review, confirming employers can deduct statutory amounts from awards without a court order and interest runs from judgment, not filing.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the application meets the legal threshold for review of the judgment delivered on 19th December 2024
Key legal issues
#Whether the application satisfies the threshold for review under Rule 74(1) of the ELRC Procedure Rules, 2024
The application was filed four days after judgment without unreasonable delay, no appeal was lodged, and an error apparent on the face of the record existed regarding interest and statutory deductions, so review was warranted.
The court set out the Rule 74(1) thresholds: application without unreasonable delay, no appeal preferred, and existence of a ground in subrules (a)–(d). Filing four days after judgment and the absence of an appeal satisfied the first two limbs. On the substantive ground, the court applied Nyamogo and Nyamogo v Kogo on error apparent on the face of the record, found the interest award contradicted the pleadings, and held that the decreed sum is subject to statutory deductions under section 49(2) of the Employment Act without needing a court order.
Whether the award is subject to statutory deductions
Yes; the phrase 'leaving a net of Kshs.5,712,174.37' was misapprehended and only meant the balance after deducting the counterclaim amount; payments under section 49(2) are subject to statutory deductions.
The applicant argued that ordering payment of a net sum would require it to pay tax on behalf of the respondent. The court held the word 'net' in the judgment referred only to the balance after the counterclaim deduction, and that section 49(2) of the Employment Act statutorily commands deductions, so no court order was needed.
From what date interest on the decreed sum should accrue
Interest should accrue from the date of the judgment, as pleaded, not from the date of filing the suit.
The respondent's claim expressly sought interest from the date of judgment until payment in full, yet the judgment awarded interest from the date of filing the suit. The court found this contradicted the pleading and constituted an error apparent on the face of the record, justifying rectification by review.
Legal principles established
#- A court order is not needed for an employer to make statutory deductions from a decreed award since there is already a statutory command to do so under section 49(2) of the Employment Act.
- An error apparent on the face of the record must be one that stares one in the face and on which there could reasonably be no two opinions; a mere erroneous decision is a ground for appeal, not review.
- Where interest is awarded contrary to the pleadings, that is a mistake or error apparent on the face of the record justifying rectification by way of review.
Court orders
#- 1.The offending paragraph of the judgment is corrected to read: 'In the end, I decree that the claimant shall pay the respondent Kshs.7,576,748.66 less kshs.1,864,574.29 leaving a net of Kshs. 5,712,174.37. The sum will attract interest at court rates from the date of the judgment until payment in full. For avoidance of doubt the decreed sum is subject to statutory deductions'
- 2.The notice of motion dated 23rd December 2024 is allowed to the extent highlighted above
- 3.Each party to bear own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Rule 74(1) of the Employment and Labour Relations Court (Procedure) Rules, 2024
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
For the reasons stated above, the notice of motion dated 23rd December 2024 is allowed to the extent highlighted above. Each party to bear own costs.
The ofiending paragraph of the judgment is corrected to read as follows:
For avoidance of doubt the decreed sum is subject to statutory deductions
Mere error or wrong view is certainly no ground for a review although it may be for an appeal.
In the impugned judgment I awarded the interest from the date of filing the suit, which was indeed contrary to the pleading.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Timaflor Limited v Ndai (Cause E013 of 2023 & E004 of 2024 (Consolidated)) [2025] KEELRC 1470 (KLR)", Case Analysis (2025). Meru ELRC No. E004 of 2024 (review application; notice of motion dated 23rd December 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1470/eng@2025-05-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.