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ELRCDismissedNot stated in the extract of the judgment provided

Mutisya v Machakos County Assembly Service Board (Cause 4 of 2018) [2025] KEELRC 1845 (KLR)

Employment and Labour Relations Court
26 June 2025
1,079 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court refused to revive a dismissed appeal application, ruling that consent orders bind parties and review requires due diligence.

What this practically means

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Executive summary

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The respondent (applicant), a judgment-debtor facing 107 decree-holders, filed a Notice of Motion dated 20.03.2024 under sections 1A, 1B and 3A of the Civil Procedure Act and Order 45 of the Civil Procedure Rules 2010 seeking review of the court's orders of 08.03.2024, which had dismissed its application dated 06.11.2023 for extension of time to file a notice of appeal on liability, and consequential extension of time to file the notice of appeal out of time. The claimants opposed through grounds of opposition, arguing inordinate and unexplained delay, ineffectiveness of the purported withdrawal of the notice of appeal, res judicata, functus officio and estoppel arising from earlier similar applications (dated 24.07.2023, 06.11.2023, 26.06.2024 and 09.07.2024) that had been dismissed, withdrawn or struck out, and prejudice to the 107 decree-holders who had filed judicial review proceedings for execution. In a ruling delivered by Byram Ongaya, Principal Judge, on 26 June 2025, the court held that parties are bound by the consent order of 27.10.2024 withdrawing a similar application, rendering the court functus officio; that the alleged new evidence of non-service of the judgment on former counsel was not discovered with due diligence; that the court cannot sit on appeal over its own decision; that no formal withdrawal of the notice of appeal was demonstrated; and that the applicant failed to invoke the ELRC (Procedure) Rules. The application was dismissed with costs and the file ordered returned to the Machakos Sub-registry.

Questions the Court framed

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

  1. 1.Whether the court should review its orders issued on 08.03.2024 dismissing the application dated 06.11.2023 for extension of time to file a notice of appeal on liability
  2. 2.Whether the applicant's alleged new evidence (that the judgment was delivered without notice to its former counsel) establishes a sufficient reason for review
  3. 3.Whether the prior consent withdrawal of a similar application dated 24.07.2023 barred the present application (functus officio, estoppel, res judicata)
  4. 4.Whether the purported withdrawal of the notice of appeal was effective under Rule 83 of the Court of Appeal Rules
  5. 5.Whether the applicant invoked the correct procedural rules for the review application

Key legal issues

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01

Whether the consent withdrawal of a prior similar application barred the review application

Holding

Yes - the parties were bound by the consent order of 27.10.2024 marking the application dated 24.07.2023 withdrawn, rendering the court functus officio and the matter settled.

Reasoning

The court found that a similar application dated 24.07.2023 was withdrawn on 27.10.2024 by consent with no orders on costs. Parties are bound by that consent; the court became functus officio. The consent order could only be set aside by the parties' own agreement, none of which was shown to exist.

p. 3
02

Whether the alleged new evidence - non-service of notice of the judgment on the applicant's former counsel - justified review

Holding

No. The applicant failed to show due diligence; it knew of the dismissal on 08.03.2024 and could have raised the lack of notice then.

Reasoning

The affidavit of the applicant's former counsel Caroline Kamende showed the judgment was delivered without notice. However, on the timelines, nothing showed that with due diligence the applicant could not have informed the court at the time of the 08.03.2024 dismissal that the judgment had been made without notice. There was thus no well-established reason for review.

p. 3
03

Whether the withdrawal of the notice of appeal was formally effective

Holding

No - there was no demonstrated formal withdrawal because the registrar had not formally marked the notice as withdrawn.

Reasoning

The applicant asserted it had waived its right of appeal by withdrawing its notice of appeal dated 12.03.2024. However, per the claimants' submissions, the registrar had not formally marked the notice as withdrawn, so no formal withdrawal was demonstrated under rule 83 of the Court of Appeal Rules.

p. 3
04

Whether the applicant invoked the correct procedural framework for the review

Holding

No - the applicant failed to invoke the relevant provisions of the Employment and Labour Relations Court (Procedure) Rules, which weighed against the application.

Reasoning

The application was anchored on the Civil Procedure Act and Civil Procedure Rules, but the matter fell under the ELRC (Procedure) Rules 2016. The claimants argued non-compliance with Rule 33(1). The court accepted that failure to invoke the correct provisions operated as an impetus to dismissal.

p. 3

Legal principles established

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  • Parties are bound by a consent order recording withdrawal of an application; the court becomes functus officio and the consent can only be set aside by the parties' own agreement, which must be shown to exist.
  • A party seeking review must demonstrate that with due diligence it could not have discovered the alleged new or omitted matter earlier.
  • A first-instance court cannot sit on appeal upon its own decision.

Court orders

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  1. 1.The application dated 20.03.2025 is dismissed with costs
  2. 2.The Deputy Registrar to return the case file to the Machakos Sub-registry forthwith

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act and Order 45 Rules 1, 2 and 3 of the Civil Procedure Rules 2010 (review jurisdiction); the court noted the applicant 'failed to invoke the relevant provisions of the Employment and Labour Relations Court (Procedure) Rules'

Relief refused

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Review of the court's orders issued on 08.03.2024

The court found no sufficient reason for review; a similar application dated 24.07.2023 was withdrawn by consent and the court became functus officio; no diligence was shown regarding the alleged lack of notice of the judgment

p. 3

Extension of time for the applicant to file its notice of appeal on liability out of time

The review, being the gateway relief, was refused; and whether the desired appeal raises arguable points are matters best left to the Court of Appeal

p. 3

Costs of the application borne by the claimants

The application was dismissed with costs, implying costs against the applicant

p. 3

Costs

The application dated 20.03.2025 was dismissed with costs (costs awarded against the applicant).

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.

As urged for the claimants, indeed parties are bound by that consent, the Court is functus officio and the matter is settled by the parties' own consent order.
p. 3Binding effect of consent orders and functus officio
The Court finds for the claimant that there is no wellestablished reason to grant the review.
p. 3Sufficient reason for review - due diligence
since it cannot sit on appeal upon its own decision such are matters best left to the consideration of the Court of Appeal in an appropriate proceeding
p. 3Limits of review - court cannot sit on appeal over its own decision
In conclusion the application dated 20.03.2025 is hereby dismissed with costs and the Deputy Registrar to return the case file to the Machakos Sub-registry forthwith.
p. 3Final orders - dismissal with costs and return of file

Issues in the judgment

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minor

The application is dated 20.03.2024 in the opening paragraph but the concluding order refers to 'the application dated 20.03.2025'.

minor

Internal date inconsistency: Ground of Opposition (iii) states the application dated 26.06.2024 'was withdrawn by the applicant on 28.02.2024' - a withdrawal date earlier than the application date.

minor

The judgment states the judgment subject of the application was delivered on 21.06.2023 in one ground, while the applicant's affidavit is quoted as saying the Court delivered judgment on 14.10.2022, and the case number of the suit is not stated anywhere in the extract.

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, "Mutisya v Machakos County Assembly Service Board (Cause 4 of 2018) [2025] KEELRC 1845 (KLR)", Case Analysis (2025). Not stated in the extract of the judgment provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1845/eng@2025-06-26

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