Kirinyaga County Public Service Board v Kenya Union of Clinic Officers & another

assumption that the applicant has created for the Court in its application is that, while attempting to upload the Notice of Appeal it encountered technical hitches on the Judiciary's Case Tracking System (CTS), which allegedly resulted in the matter disappearing from the system and necessitated fresh linking, party registration and mapping. 4. In articulating the grounds of the Reference, the respondent contends that: the learned Judge erred in exercising his discretion in favour of the applicant; that the explanation for the delay was unsatisfactory; that the applicant had previously sought similar relief before the ELRC and been denied, rendering the application before the single Judge res judicata; and that the respondent's members will suer prejudice if the extension is upheld. 5. When the Reference came before the Court for plenary hearing on 20th April 2026, learned counsel appeared as follows: Mr. Nyamodi and M/s Small for the applicant; Mr. Ataka for the respondent; and, M/s Wangeci for the interested party. 6. In his brief oral highlights, Mr. Ataka argued that: there is a clear error of principle because a document that is irregularly led cannot be deemed to be properly led; the print out relied on as evidence of delay is not sucient as it is not dated or signed; the delay was caused by the applicant’s own policy; and, that the period of delay was seven (7) and not ve (5) hours. 7. M/s Wangeci did not le any submissions for the interested party. She associated herself with the submissions of Mr. Ataka. 8. In his highlight, Mr. Nyamodi asserted that the learned single Judge properly exercised jurisdiction under rule 4. That the applicant sought leave for their Notice of Appeal to be deemed as properly led, but the Court did order them to le the Notice of Appeal afresh, which they did. That the length of delay was ve (5) hours and there is annexed a print out to show that the delay was due to down time in the Judiciary’s CTS and there is an accompanying certicate. Counsel submitted that today, there are no vacancies as the county could not function without recruiting sta. 9. We have considered the Reference, the submissions of the parties and the ruling of the learned single Judge. The jurisdiction of a full Court on a Reference is limited. The Court will not interfere with the exercise of discretion by a single Judge, merely because it may have arrived at a dierent conclusion. Interference is justied where it is demonstrated that the Judge misdirected himself, considered matters which he ought not to have considered, failed to consider relevant matters, or otherwise exercised discretion on a wrong principle. 10. In Daima Bank Limited (In Liquidation) v Prof. David Musyimi Ndetei: [2011] eKLR (Civil Appeal No. 171 of 2010), this Court referred to its ruling in a Reference to the full Court in John Koyi Waluke v Moses Masika Wetangula & 2 Others Civil Appeal (Application) No. 307 of 2009 (Unreported) and stated inter alia as follows: “ …… we have stated time without number that in exercising the unfettered discretion under Rule 4 of this Court’s Rules, a single judge of the Court is doing so on behalf of the whole Court and the full bench of the Court would only be entitled to interfere with the exercise of discretion, if it be shown that in the process of exercising the discretion the single judge has taken into account an irrelevant matter which he ought not to have taken into account, or that he failed to take into account a relevant matter which he ought to have taken into account, or that he misapprehended some aspect of the evidence and the law applicable, or short of these, that this decision was plainly wrong and could not have been arrived at by a reasonable tribunal properly directing itself to the evidence and the law. It is not enough for https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1866/eng@2026-09-25 2

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example, to show the full Court that had it been sitting in place of the single judge it would have arrived at a dierent result” 11. In the Reference before us, the learned Judge considered the principles applicable under rule 4 as laid out in Leo Sila Mutiso v Rose Hellen Wangari Mwangi, Civil Application No. NAI 255 of 1997, where the Court identied inter alia, the length of delay, the reason for delay, the chances of the intended appeal succeeding and the prejudice to the respondent, as relevant considerations. 12. The learned Judge found that the delay was only a few hours and that the explanation given, namely the technical hitch on the CTS, was satisfactory. He also took into account the fact that the applicant was vigilant enough to lodge the Notice of Appeal at about 5.00 a.m. the following day. We nd no misdirection in that conclusion. The delay was minimal and the explanation was supported by the material placed before the learned Judge. The fact that the applicant subsequently succeeded in lodging the Notice of Appeal only a few hours after the deadline was a relevant circumstance which the learned Judge was entitled to consider. 13. We note that the learned Judge considered the applicant's contention in the intended appeal, that it had been ordered to reinstate a substantial number of employees, several years after their termination, at a time when vacancies were allegedly no longer available. The learned Judge was entitled, at that stage, to nd that the intended appeal was arguable. We are not persuaded that the respondent demonstrated prejudice sucient to warrant interference with the exercise of discretion by the single Judge. As the learned Judge observed, the applicant was seeking to exercise its right of appeal. 14. This brings us to the complaint that the leaned Judge violated the jurisdictional bar of res judicata in entertaining and delving into matters that had been conclusively decided by the ELRC. The fact that the applicant had previously sought enlargement of time before the ELRC, did not make the application res judicata and did not oust the original jurisdiction of this Court under rule 4. The Civil Procedure Act provides in section 7 as follows; “ No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and nally decided by such court.” 15. The term res judicata, Latin for “a thing adjudicated [or decided]” captures the idea that once an issue has been dealt with by a competent court, it is not open to any of the parties involved in the dispute, or those claiming under or through them, to raise the same issue so decided in those proceedings by way of a subsequent case, or re-agitation of that same issue. It is grounded on nality of determination, thus bringing an end to litigation while creating certainty on issues in dispute and assuring rest from vexation to the parties. 16. Black’s Law Dictionary 10th Edn. at P1504 denes res judicata as; “ 1. An issue that has been denitively settled by judicial decision. 2. An armative defense barring the same parties from litigating a second lawsuit on the same claim or any other claim arising from the same transaction or series of transaction and that could have been – but was not raised in the rst suit. The three essential elements on the merits are; 1) An earlier decision on the same. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1866/eng@2026-09-25 3

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2) A nal judgment on the merits, and 3) The involvement of the same parties, or parties in privity with the original parties.” The learned Judge correctly observed that the jurisdiction donated by rule 4 is independent. The ELRC, not being a court of contemporary jurisdiction, its earlier refusal to grant the leave sought did not oust the original jurisdiction of this Court under rule 4. 17. In the result, we are not satised that the respondent has demonstrated any error of principle, misdirection, or failure to take into account a relevant consideration on the part of the single Judge warranting interference with his exercise of discretion. 18. The Reference is accordingly dismissed and the ruling of the single Judge delivered on 28th February 2025 is upheld. Costs are awarded to the applicant. DATED AND DELIVERED AT NYERI THIS 25TH DAY OF SEPTEMBER, 2026 MUMBI NGUGI .................... JUDGE OF APPEAL L. ACHODE ……………….......…..JUDGE OF APPEAL KATWA KIGEN …………….…..…..JUDGE OF APPEAL https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1866/eng@2026-09-25 4

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