Mwangi v Happy Go Limited (Cause 229 of 2018) [2025] KEELRC 679 (KLR)
The bottom line
#A Kenyan employment claimant lost his bid to revisit old court orders because he should have appealed instead of filing repeated applications.
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 dated 26th June 2024 has been overtaken by events
- 2.Whether the application dated 6th May 2024 is res judicata or are there grounds to have the same reviewed
Key legal issues
#Whether grounds existed for review of the orders of 14th March 2023
The application for review failed; no new and important matter, error apparent on the face of the record, or other sufficient reason was shown, and the earlier review application of 27th March 2023 had already been struck out on 16th November 2023
Rule 74(1) of the ELRC Procedure Rules (2024) confines review to discovery of new matter, error apparent on the record, need for clarification or other sufficient reason. The applicant's complaint of non-service and lack of a filed decree had already been litigated and determined in the ruling of 16th November 2023 striking out his earlier review application. No appeal was preferred against that ruling; instead further applications were filed in the same court, which the court held concluded the matter and rendered it functus officio.
Whether the application dated 6th May 2024 was res judicata
The court applied Section 7 of the Civil Procedure Act and the res judicata doctrine, holding the motion not proved and dismissing it
The ruling of 16th November 2023 had determined and concluded the application relating to the orders of 14th March 2023 between the same parties. Citing Section 7 of the Civil Procedure Act and the John Florence and KCB v Muiri Coffee Estate authorities, the court held that a litigant gets only one bite at the cherry and that the proper course was appeal, not successive review applications.
Whether the statutory deductions from the decretal sum were lawful and whether execution could issue
The judgment itself provided the award was less statutory deductions and Section 49(2) of the Employment Act subjects awards to statutory deductions; the claim for tax-related losses failed
The applicant contended the decree remained unsatisfied and that the statutory deductions were wrongful, relying on authorities that court decrees are not taxable income. The court noted the judgment of Justice D. Nderitu had awarded the sum less statutory deductions, and that each person bears responsibility for their own tax obligations, the applicant no longer being an employee of the Respondent.
Whether Justice D. Nderitu should recuse himself and face investigation
The court declined to determine the recusal application because it related to another judge, and left it to the applicant to have it transferred to that judge's court
The applicant alleged collusion and corruption against the judge who granted the orders of 14th March 2023 and against counsel and the Respondent. The court noted the judge had been transferred to Kakamega and held that it was not in a position to determine an application directed at another judge. It made no findings on the merits of the allegations.
Legal principles established
#- Res judicata bars a litigant from returning to court for relief already conclusively determined, and the proper remedy against an adverse ruling is an appeal rather than successive applications in the same court
- Awards under Section 49(2) of the Employment Act are subject to statutory deductions, and each person is responsible for his own tax obligations
Court orders
#- 1.The Notice of Motion dated 6th May 2024 seeking review of the orders of 14th March 2023 is dismissed
- 2.The Notice of Motion dated 26th June 2024 seeking recusal of Justice D. Nderitu is not determined by this court; the applicant may have it transferred to the court of the named Judge should he choose to proceed
- 3.Each party to meet their own costs of the applications
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Articles 50 and 159 of the Constitution and the Employment and Labour Relations Court (Procedure) Rules; review sought under Rule 33(1) of the 2016 Rules and Rule 74(1)(a-d) of the 2024 Rules
Relief refused
#Order of review setting aside the ex-parte orders granted on 14th March 2023
No new grounds for review were established; the earlier application of 27th March 2023 was struck out on 16th November 2023 and the matter was res judicata
Recusal of Justice D. Nderitu and investigation into the judge, advocates and Respondent
The court could not determine an application directed at another judge
Leave to execute the decree of 28th November 2022 through Betabase Auctioneers
The judgment provided the award was less statutory deductions; the applicant remained liable for his own tax obligations
Costs
Each party will meet their costs of these applications.
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.
The court finds no merits however to the application seeking review of the application dated 6th May 2024 and is dismissed. Each party will meet their costs of these applications. Orders accordingly.
The Ruling delivered on 16th November 2023 determined and concluded the application of 14th March 2023.
the safer way for the applicant was to file an appeal instead of filing numerous applications in the same court thus, making the matter functus oficio as the High Court has discharged its mandate.
This court is not in a position to determine this application as it relates to another Judge.
The court finds and holds that the applicant’s motion dated 6th May 2024 has not been proved and is dismissed accordingly.
Issues in the judgment
#Party names, case number and neutral citation are not stated anywhere in the judgment; the parties are referred to only as Claimant/Applicant and Respondent
The Respondent's replying affidavits are described as sworn on 4th November 2023 but filed on 6th November 2024, an internally inconsistent chronology
The court cites Rule 33(1) of the 2016 Rules in the claimant's submissions but decides review under Rule 74(1) of the 2024 Rules without reconciling the two provisions
The court dismisses the motion dated 6th May 2024 but its concluding paragraph refers to 'review of the application dated 6th May 2024', conflating the two applications
The recusal application (26th June 2024) is left undetermined rather than allowed or dismissed, with the court noting the named judge has been transferred
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mwangi v Happy Go Limited (Cause 229 of 2018) [2025] KEELRC 679 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/679/eng@2025-03-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.