Mutisya v Machakos County Assembly Service Board (Cause 4 of 2018) [2025] KEELRC 1845 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 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.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.Whether the prior consent withdrawal of a similar application dated 24.07.2023 barred the present application (functus officio, estoppel, res judicata)
- 4.Whether the purported withdrawal of the notice of appeal was effective under Rule 83 of the Court of Appeal Rules
- 5.Whether the applicant invoked the correct procedural rules for the review application
Key legal issues
#Whether the consent withdrawal of a prior similar application barred the review application
Yes - the parties were bound by the consent order of 27.10.2024 marking the application dated 24.07.2023 withdrawn, rendering the court functus officio and the matter settled.
The court found that a similar application dated 24.07.2023 was withdrawn on 27.10.2024 by consent with no orders on costs.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.
Whether the alleged new evidence - non-service of notice of the judgment on the applicant's former counsel - justified review
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.
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.
Whether the withdrawal of the notice of appeal was formally effective
No - there was no demonstrated formal withdrawal because the registrar had not formally marked the notice as withdrawn.
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.
Whether the applicant invoked the correct procedural framework for the review
No - the applicant failed to invoke the relevant provisions of the Employment and Labour Relations Court (Procedure) Rules, which weighed against the application.
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.
Legal principles established
#- 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
#- 1.The application dated 20.03.2025 is dismissed with costs
- 2.The Deputy Registrar to return the case file to the Machakos Sub-registry forthwith
The bench
#One judgment of the whole court — no separate or dissenting opinions.
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
#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
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
Costs of the application borne by the claimants
The application was dismissed with costs, implying costs against the applicant
Costs
The application dated 20.03.2025 was dismissed with costs (costs awarded against the applicant).
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.
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.
The Court finds for the claimant that there is no wellestablished reason to grant the review.
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
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.
Issues in the judgment
#The application is dated 20.03.2024 in the opening paragraph but the concluding order refers to 'the application dated 20.03.2025'.
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.
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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.