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Case Brief · caselaw.co.ke
ELRCDismissedELRC MISC. APPLICATION NO. E097 OF 2025

Johin Ososi v Cyka Manpower Ltd

Employment & Labour Relations Court
1 October 2026
4,237 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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A Kenyan employment court dismissed a review application because the applicant claimed new evidence existed but never actually showed it to the court.

What this practically means

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Executive summary

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The Applicant, a former employee of the Respondent whose claim was dismissed by a ruling delivered on 22nd January 2026, moved the Court by Notice of Motion dated 29th April 2026 seeking stay of execution, review/vacation of that ruling, and leave to file a further affidavit. He argued he was never served with the Respondent's replying affidavit and submissions raising particulars of fraud and an alternative award by the Director of Occupational Safety and Health Services, and that he had discovered new evidence. The Respondent opposed, contending the ruling date was taken by consent, the Applicant had access to the Case Tracking System, the application was filed over three months late, and the Court was functus officio absent statutory review grounds. Both parties filed extensive submissions citing Section 80 of the Civil Procedure Act, Order 45 Rule 1, and the ELRC (Procedure) Rules, together with numerous authorities on the narrow scope of review. Wasilwa J held that the Court has jurisdiction to review under Rule 74 of the ELRC (Procedure) Rules 2024, but that an applicant relying on discovery of new and important matter must exhibit that material in the supporting affidavit. The Applicant had only averred to the existence of new evidence without placing it before the Court, leaving the Court unable to assess its weight or genuineness. The application was found unproved and unmerited and dismissed with an order of costs. The judgment did not resolve the estoppel and functus officio arguments on the merits.

Questions the Court framed

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

  1. 1.Whether the Applicant has satisfied the threshold for review of the ruling delivered on 22nd January 2026 under Rule 74 of the ELRC (Procedure) Rules
  2. 2.Whether the Applicant is estopped from invoking the review jurisdiction having consented to the ruling date and delayed over three months
  3. 3.Whether the Court is functus officio in respect of issues determined in the ruling of 22nd January 2026

Key legal issues

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01

Whether the Applicant demonstrated discovery of new and important matter or evidence under Rule 74(1)(a)

Holding

The application fails because the alleged new evidence was never exhibited before the court.

Reasoning

The court accepted it has jurisdiction to review under Rule 74 of the ELRC (Procedure) Rules 2024. However, under Rule 74(1)(a), any new and important matter or evidence relied upon must be exhibited in the supporting affidavit. The Applicant merely averred that new material existed in the Respondent's possession but placed no such evidence before the court, leaving the court unable to assess its weight, genuineness or relevance.

p. 20

Legal principles established

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  • An applicant for review on the ground of discovery of new and important matter must exhibit that material as proof of the discovery; mere averment is insufficient.

Court orders

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  1. 1.The application dated 29th April 2026 is dismissed
  2. 2.There shall be an order of costs

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Rule 74 of the Employment and Labour Relations Court (Procedure) Rules

Relief refused

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Stay of execution of the ruling delivered on 22nd January 2026

Application for review not proved

p. 20

Vacating, review, variation or setting aside of the ruling of 22nd January 2026

No new and important matter or evidence was exhibited before the court

p. 20

Leave to file a Further Affidavit in response to averments of fraud

Application dismissed in its entirety

p. 20

Costs

There shall be an order of costs (recorded in the judgment as 'There shall be on order of costs').

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.

In the circumstances of this case, I find the application not proved and is found unmerited and dismissed accordingly. There shall be on order of costs.
p. 20Disposition
if indeed there is a discovery of a new and important matter or evidence such new discovery or important matter should be exhibited as part of the supporting affidavit as proof of such discovery
p. 19Evidentiary burden on review
The court is left guessing or wondering what the new discovery is and is not thus in a position to determine herein how weighty the discovery would be to the determination of the case.
p. 20Failure to exhibit new evidence

Issues in the judgment

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material

Costs order text ambiguous - 'on order of costs' likely typo for 'an' or 'no'

minor

Application dated 29th April 2026 but cause number is E097 OF 2025

minor

Court cites Rule 74 of the 2024 Rules while parties argued Rule 74 of the ELRC (Procedure) Rules and Rule 33 of the 2016 Rules

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, "Johin Ososi v Cyka Manpower Ltd", Case Analysis (2026). ELRC MISC. APPLICATION NO. E097 OF 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2720/eng@2026-10-01

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