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ELRCDismissedNot stated in the judgment as provided· [2025] KEELRC 2703 (KLR)

Kiguru v Uptext East Africa Limited & another (Cause E1109 of 2024) [2025] KEELRC 2703 (KLR)

Employment and Labour Relations Court
3 October 2025
SRSTELLA RUTTO
2,105 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This judgment of the Employment and Labour Relations Court at Nairobi (Stella Rutto, Judge) determines the Respondents/Applicants' Notice of Motion seeking review of the Court's Ruling of 2nd May 2025, which had directed them to deposit USD 14,000 in a joint interest-earning account as security, and stay of execution of that order. The Applicants argued there was an error apparent on the face of the record in that the Court misapplied Rule 68(3) of the ELRC (Procedure) Rules, 2024, imposed security without the statutory threshold being met, improperly relied on an informal mention of bankruptcy and an alleged admission of liability, and made substantive determinations on disputed issues at an interlocutory stage. The Claimant opposed, contending the Applicants were re-litigating the merits of the earlier ruling under the guise of review, and that their admitted financial constraints justified the security. Framing the sole issue as whether sufficient grounds for review were established, the Court held that Rule 68(3) requires only a credible apprehension that satisfaction of a judgment could be defeated or frustrated, not proof of imminent bankruptcy, and that the partial deposit was proportionate. Relying on National Bank of Kenya Ltd v Ndungu Njau and Francis Njoroge v Stephen Maina Kamore, the Court held that challenges to the merits of a ruling belong on appeal, not review, and that inability to comply with an order is not a ground for review. The application was dismissed with costs in the cause.

Key legal issues

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01

Whether an error apparent on the face of the record existed in the Ruling of 2nd May 2025

Holding

No error apparent; the Court properly applied Rule 68(3) based on the Director's bankruptcy statement and admission of liability

Reasoning

The original ruling was based on correspondence in which the Applicants' Director declared bankruptcy and on an admission in a Replying Affidavit acknowledging unpaid salary entitlement. The Court was entitled to infer a real and substantial risk that any award could be defeated by financial instability. The order was partial (USD 14,000 of a USD 48,000 claim) and proportionate. Alleged misconstruction of Rule 68(3) is a ground of appeal, not review, per National Bank of Kenya Ltd v Ndungu Njau.

p. 3
02

Whether inability to comply with an order can ground review

Holding

No; inability to comply is not a permissible ground for review

Reasoning

Applying Francis Njoroge v Stephen Maina Kamore, allowing review merely because orders are inconvenient or cannot be complied with would set a dangerous precedent, exposing decisions that belong on appeal to attack before the same court under the guise of review.

p. 4

Legal principles established

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  • Rule 68(3) ELRC Rules does not require proof of imminent bankruptcy; a credible apprehension that satisfaction of a potential judgment could be defeated or frustrated suffices for a security deposit order
  • Dissatisfaction with the findings in a ruling constitutes grounds of appeal, not grounds of review; review cannot be used to re-argue the merits of a decision

Court orders

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  1. 1.The Notice of Motion dated 19th May 2024 seeking review is dismissed
  2. 2.Costs shall be in the cause
Jurisdiction invoked
Rule 74(1) of the Employment and Labour Relations Court (Procedure) Rules, 2024 (review jurisdiction)

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, "Kiguru v Uptext East Africa Limited & another (Cause E1109 of 2024) [2025] KEELRC 2703 (KLR)", Case Analysis (2025). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2703/eng@2025-10-03

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