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Zakayo v Timaflor Limited (Miscellaneous Application E005 of 2024) [2025] KEELRC 2273 (KLR)

Employment and Labour Relations Court
31 July 2025
OMONESMUS N MAKAU
1,116 words in judgment
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The bottom line

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A Kenyan court corrected its own ruling so an employee could not be paid medical expenses his employer had already covered.

What this practically means

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Executive summary

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On 20th December 2024 the court adopted as its judgment a DOSH assessment of Kshs.638,214.05 plus costs and interest in favour of the respondent (claimant) against the applicant (employer/judgment debtor). The applicant moved by Notice of Motion dated 4th February 2025 seeking review, specifically the discounting of Kshs.477,042 in medical expenses it said it had directly paid on the claimant's behalf. The application was supported by an affidavit of the insurer's Legal Officer, Cheryl Odipo, and opposed by the claimant, who argued inordinate delay, failure to challenge the award before the Director, that the medical expenses were paid long after discharge, and that the issue had already been dealt with in the impugned ruling. The court framed a single issue: whether an error apparent on the face of the record warranted review under rule 74(1) of the ELRC Procedure Rules. It found the two-month delay reasonable given the court recess. On the merits, it held the impugned ruling erred by referring to a second medical examination reducing the award to Kshs.370,225 when the Replying Affidavit never mentioned such an examination, and that sum was in fact the insurer's payment of the sum assured to the employer, not a payment to the employee. A Domestic Fund Transfer of 21st June 2022 proved the employer paid the medical expenses, and awarding them to the claimant would be unjust enrichment. The court allowed the application, varied the ruling to discount Kshs.477,042, and ordered each party to bear own costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the delay of about two months in bringing the review application was unreasonable
  2. 2.Whether the applicant demonstrated an error apparent on the face of the record warranting review and/or varying of the ruling of 20th December 2024

Key legal issues

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01

Error apparent on the face of the record justifying review under rule 74(1)

Holding

The impugned ruling contained an error on the face of the record because it proceeded on a second medical examination that was never mentioned in the Replying Affidavit, and conflated the insurer's payment of the sum assured to the employer with a payment to the injured employee.

Reasoning

The court compared the Replying Affidavit of Cheryl Odipo with its earlier ruling and found the ruling referenced a second medical examination reducing the DOSH award to Kshs.370,225, yet no such examination appeared in the affidavit. That sum was the insurance payout to the employer, not a payment to the claimant. The employer's Domestic Fund Transfer of 21st June 2022 proved it paid the medical expenses of Kshs.477,042, so awarding them to the claimant would be unjust enrichment.

p. 3
02

Reasonableness of the two-month delay in filing the review

Holding

The delay of about two months was not unreasonable given the intervening court recess.

Reasoning

The respondent argued inordinate delay, but the court held that a court recess fell between the ruling and the application, making the timing within 'reasonable time' as required by rule 74(1) of the ELRC Procedure Rules.

p. 2
03

Whether payment of medical expenses after the claimant's discharge matters

Holding

The timing of the payment of medical expenses relative to discharge is immaterial.

Reasoning

The claimant contended the medical expenses were paid long after discharge, but the court found the Domestic Fund Transfer of 21st June 2022 proved the employer paid the Kshs.477,042, and the timing was not material to the entitlement question.

p. 3

Legal principles established

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  • Where medical expenses were paid by the employer as evidenced by documentary proof, awarding them again to the claimant who did not incur them would amount to unjust enrichment and constitutes an error on the face of the record.

Court orders

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  1. 1.The ruling of 20th December 2024 is reviewed and varied to the extent that the sum of Kshs.477,042 being medical expenses is discounted from the amount payable
  2. 2.The application dated 4th February 2025 is allowed in terms of prayer 3 thereof
  3. 3.Each party to bear own costs of the application

The bench

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One judgment of the whole court — no separate or dissenting opinions.

OM
majority

Wrote the judgment

Jurisdiction invoked
Rule 74(1) of the Employment and Labour Relations Court (Procedure) Rules, 2024 (review jurisdiction)

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

I proceed to review the impugned ruling by varying the same to the extent that the sum of Kshs.477,042 is discounted while paying the respondent (claimant) the DOSH award of Kshs.638,214.05.
p. 3final orders - review and variation
In conclusion, I allow the application dated 4th February 2025 in terms of prayer 3 thereof. Each party shall bear own costs of the application because it was occasioned by an error apparent on the face of the record.
p. 3disposition and costs
There is no doubt that the above excerpt from my ruling points to an error on the face of the record as there was no mention of second medical examination in the Replying Afidavit
p. 3error apparent on the face of the record

Issues in the judgment

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minor

The Replying Affidavit is inconsistently attributed: introduced as sworn on 4th February 2025 by Cheryl Odipo, but later described as sworn on 24th July 2024, with the name also spelled 'Cherly Odipo'.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Zakayo v Timaflor Limited (Miscellaneous Application E005 of 2024) [2025] KEELRC 2273 (KLR)", Case Analysis (2025). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2273/eng@2025-07-31

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.