James Mungai Warui v Office of the Director of Public Prosecutions, Public Service Commission & Attorney General

creating irreversible third party rights relating to the office of Inspector General (Corporations). f) In the alternative, and without prejudice to the foregoing prayers, this Court be pleased to bring forward the mention date fixed for 13 July 2026 and issue such consequential directions as may be necessary for the expeditious hearing of the substantive Motion before the completion of the impugned recruitment process. g) The costs of this application abide the outcome of the substantive Judicial Review proceedings. The application is supported by the application and his Supporting Affidavit, and on the grounds that, on 11 June 2026, the court directed that the matter be mentioned on 13 July 2026. Subsequently, new and important matters have arisen that were not within the applicant's knowledge and could not, with reasonable diligence, have been placed before the court when the directions herein were issued. Those subsequent events include the 2nd respondent's continued implementation of the challenged recruitment process, the shortlisting of applications, and the invitation to attend an interview on 9 July 2026. The applicant avers in the Supporting Affidavit that these developments have fundamentally changed and, unless a precautionary order is granted, the challenged recruitment process is likely to culminate in a substantive appointment before the matters herein are heard and determined, creating irreversible legal and practical consequences. The applicant currently occupies the office of the Inspector-General (Corporations) in an acting capacity while simultaneously disputing the legality of his exclusion from career progression within the 1st respondent's office. Completing the recruitment process before determination of the pending Motion risks extinguishing the substratum of these proceedings and rendering any eventual judgment ineffective. The applicant admits that he has already appealed against the ruling delivered on 11 June 2026. This application is not intended to relitigate or ELRC NAIROBI RULING NO. 2 JUDICIAL REVIEW APPLICATION NO. E012 OF 2026 2

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appeal against the ruling, but is founded exclusively on supervening events arising after the delivery of the ruling herein. The applicant also filed a Further Affidavit and avers that on 17 July 2026, he received an email from the 2 nd respondent, with an attached letter to Arthur A. Osiya, Principal Administrative Secretary, dated 15 July 2026, regarding a vacancy and appointment as Inspector General (Corporations). The letter instructs Osiya to release the applicant with immediate effect to report back to the 1 st respondent, which is the subject of the Motion herein. This letter renders Order (d) of the reliefs sought herein nugatory unless the court reviews its ruling delivered on 11 June 2026. The petitioner also filed his Supplementary Affidavit in response to the 2 nd respondent and avers that the court is not functus officio as alleged. Section 80 of the Civil Procedure Act and Order 45 Rule 1 allow the court to review its ruling. Rule 74 of the ELRC (Procedure) Rules allows the court to review the ruling, as held in Republic v Public Procurement Administrative Review Board & 2 others [2018] eKLR, and Pancras T. Swai v Kenya Breweries Limited [2014] eKLR. The applicant avers that he had an application dated 15 June 2026 pending before the Court of Appeal, Civil Application No. E319 of 2026 seeking conservatory orders staying the recruitment, shortlisting, interviewing and substantive filling of the position of Inspector-General (Corporations). The appeal arises from the ruling herein delivered on 11 June 2026. The application has yet to be heard, and this does not prevent the applicant from invoking the court's inherent jurisdiction under Rule 74 of the ELRC (Procedure) Rules to review the ruling. In reply, the 2nd respondent filed the Replying Affidavit of Paul Famba, the Secretary/CEO of the Public Service Commission (PSC). He avers that upon the ruling delivered on 11 June 2026 and the orders sought by the applicant, the court is functus officio. On 15 June 2026, the applicant filed Nairobi Court of Appeal Civil Application No. E319 of 2026 seeking ELRC NAIROBI RULING NO. 2 JUDICIAL REVIEW APPLICATION NO. E012 OF 2026 3

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to challenge the ruling delivered on 11 June 2025, and further seeking conservatory orders as herein done. Rule 74(1) of the ELRC (Procedure) Rules allows a person aggrieved by the court ruling, where there is no appeal, to file for a review. In Serephen Nyasani Menge v Rispah Onsase [2018] eKLR, the court held that section 80 of the Civil Procedure Act and Order 45, rules 1 and 2 of the Civil Procedure Rules do not permit a party to file an appeal and a review application simultaneously. In Republic v Advocates Disciplinary Tribunal ex parte Apollo Mboya [2019] eKLR, the court held that a court may review its decision for sufficient cause but cannot entertain such a matter where an appeal is already pending. Famba avers that a review of the ruling delivered on 11 June 2026 would negate the invitations to attend the interview set for 9 July 2026, where the applicant has admitted he has been invited. This is not new material to necessitate a review of the ruling herein. The application is an abuse of court process and should be dismissed with costs. Parties attended and made oral submissions. These are analysed, and the twin issues for determination are whether the court should review its ruling delivered on 11 June 2026 and whether a conservatory order restraining the 2nd respondent from undertaking any measures to fill the position of Inspector-General (Corporations) should be issued in the interim. In addressing the application, the applicant has largely relied on section 80 of the Civil Procedure Act, Order 45 rule 1 of the Civil Procedure Rules, and Rule 33 of the Employment and Labour Relations Court (Procedure) Rules, 2016. Although the applicant later changed to the Employment and Labour Relations Court (Procedure) Rules, 2024, the main application contains no amendment reflecting this. For the review sought herein, Rule 74 of the Employment and Labour Relations Court (Procedure) Rules (the ELRC (Procedure) Rules) applies. ELRC NAIROBI RULING NO. 2 JUDICIAL REVIEW APPLICATION NO. E012 OF 2026 4

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For a review of its ruling or judgment, the Civil Procedure Act and the rules thereto do not apply, except for persuasive purposes. The applicant has admitted that on 15 June 2026, he filed Nairobi Civil Appeal No. E319 of 2026. It challenges the ruling herein delivered on 11 June 2026, which he sought to review through his application dated 5 July 2026. The instant application is that, post the ruling herein, new and important matters have arisen, necessitating the applicant's return for review. Unless the Court grants it, the entire proceedings will be rendered nugatory. It is admitted that the appeal now before the Court of Appeal seeks interim orders, including an injunction and conservatory orders, staying the ongoing recruitment, shortlisting, interviewing, and substantive filling of the position of Inspector-General (Corporations) as advertised by the 2nd respondent. Hence, a determination of the matter before the Court of Appeal, following the challenged ruling herein delivered on 11 June 2026, would resolve the issues addressed by the applicant in the subject application dated 5 May 2026. In Muthoni & another v Muhuhi & 3 others [2025] KEHC 2087 (KLR), the court held that the court’s jurisdiction for review entails a judicial re-examination, that is to say, a reconsideration, and a second view or examination, and a consideration for purposes of correction of a decree or order on a former occasion. And one procures such examination and correction, alteration or reversal of a former position for good cause. Hence, the court of review has only a limited jurisdiction circumscribed by the definitive limits fixed by the language used under Rule 74 of the ELRC (Procedure) Rules. A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error. It lies only if one of the grounds is shown; one cannot elaborate into evidence again and then reverse the decree or order, as that would be acting without ELRC NAIROBI RULING NO. 2 JUDICIAL REVIEW APPLICATION NO. E012 OF 2026 5

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jurisdiction and sitting in appeal. The object is not to enable a judge to rewrite a second judgment or ruling because the first one is wrong. In an application for review, the court determines whether any evident error or omission requires correction or is otherwise necessary for the ends of justice. The power, which inheres in every court of plenary jurisdiction, is exercised to prevent miscarriage of justice or to correct grave and palpable errors. Thus, in Macharia & another v Kenya Commercial Bank Ltd & 2 others [2012] KESC 8 (KLR), the court held that while an appeal entailed some form of review of a lower court’s decision in terms of assessing that court’s interpretation and application of the law, it was not the same as a “review” in the technical sense. Upon its review, the court may correct an irregularity or error apparent on the face of the record. When exercising this mandate under Rule 74 of the ELRC (Procedure) Rules, where there is an appeal, such mandate ceases. The Supreme Court in Outa v Okello & 3 others [2017] KESC 25 (KLR) held that the “slip rule”, by its nature, permits a Court of law to correct errors that are apparent on the face of a Judgment, Ruling, or Order of the Court. Such errors must be so obvious that correcting them cannot generate any controversy regarding the Court's judgment or decision. Such errors must be of a nature that their correction would not change the substance of the orders issued or alter the Court's clear intention. In other words, the Slip Rule does not confer on a Court any jurisdiction or power to sit on appeal over its own Judgment, or to extensively review such Judgment to alter it substantially. In Telkom Kenya Ltd v Ochanda [2015] KESC 18, the court emphasised that any questions of law arising from a ruling or judgment are subject to appeal. Conversely, therefore, any error on the face of the record can well be addressed through review. The applicant asserts that, since the ruling delivered on 11 June 2026, subsequent matters have arisen, necessitating his seeking a review. He proceeded to the Court of Appeal immediately after the ruling was ELRC NAIROBI RULING NO. 2 JUDICIAL REVIEW APPLICATION NO. E012 OF 2026 6

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delivered on 15 June 2026, and where the foundation of his application in Civil Appeal No. E319 of 2026 was to be addressed, the court would be invited to review its ruling, which would result in relitigating the appeal itself. The 2nd respondent submitted submissions on the ruling delivered on 11 June 2026, the same subject of Civil Appeal No. E319 of 2026; this court stands functus officio. Under Rule 74 of the ELRC (Procedure) Rules, the invitation to review is an abuse of court process. Accordingly, the application dated 5 July 2026 is without merit and is hereby dismissed. Costs to the 2nd respondent. Delivered in open court this 30th day of September 2026 M. MBARŨ JUDGE In the presence of: Court Assistant: Kemboi …………………………………………… and ………………………………….. ……… ELRC NAIROBI RULING NO. 2 JUDICIAL REVIEW APPLICATION NO. E012 OF 2026 7

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