Johin Ososi v Cyka Manpower Ltd

5. THAT the Honorable Court do make any such further orders and issue any other relief it may deem just to grant in the interest of justice. 6. THAT the costs of this application be in the cause. Applicant’s Case 2 The Applicant avers that the matter herein was first substantially dealt with by this Court on 24 th September 2025, when the Respondent sought and was granted 14 days to file its Response, with a mention date set for 4 th November 2025. 3 The Applicant avers that on 4th November 2025 the Respondent had still not complied and sought a further 14 days, resulting in a ruling date of 22nd January 2026 with leave to comply as prayed. 4 The Applicant contends that the Respondent thereafter filed its replying affidavit sworn on 4th November 2025 and written submissions dated 24th November 2025 but failed to serve the same upon his advocates on record, notwithstanding that his own submissions dated 20 th June 2025 had already been filed and served on 23rd June 2025. 5 He avers that consequently, when the ruling was delivered on 22nd January 2026, he had not been served with the Respondent's replying affidavit and written submissions, and states that the Court dismissed his claim mainly on Page 2 of 20

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account of particulars of fraud raised therein, of which he was unaware for want of service. 6 It is the Applicant's case that he has since discovered additional evidence directly relevant to the matter, and contends that it is in the interest of justice that this evidence be admitted afresh, the Court's ruling having turned substantially on grave particulars of fraud which required his response before the Court could pronounce itself. 7 He asserts that, granted the opportunity to adduce this evidence, it would influence or impact the claim, and that it is accordingly fair that the ruling of 22 nd January 2026 be reviewed, vacated or set aside. 8 He avers that the new evidence could not have been obtained with reasonable diligence for use at the trial, not being within his knowledge but rather in the Respondent's possession, and states that the same is not sought for the purpose of filling lacunae or gaps in evidence but to aid the Court in reaching a fair decision after hearing all parties, and further discloses a strong prima facie case in his favour, particularly given that he was seriously injured while working for the Respondent. 9 He contends that the Respondent will suffer no prejudice if the Application is allowed, as it will equally have an Page 3 of 20

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opportunity to respond, and asserts that the application has been brought in good faith and without undue delay. 10 By his Further Affidavit sworn on 10 th June 2026 in response to the Respondent's Replying Affidavit of 21 st May 2026, the Applicant avers that his submissions had already been filed by the time the matter was mentioned on 4th November 2025, this matter having been filed on 10th April 2025, and that the Respondent was thereafter required to file and serve its response before the ruling date. 11 He contends that the Respondent's admission, at paragraph 12 of its Replying Affidavit, that unfettered access to the judiciary portal does not oust the requirement of service, confirms that he was never granted an opportunity to respond to the issues of fraud raised, having only learnt of the same after the Ruling was delivered. 12 In response to the Respondent's averments on delay, the Applicant explains that, having been rendered unemployed by the injuries he sustained while working for the Respondent, he was unable to secure alternative employment and relocated to his rural home, and that his advocates only reached him on 27 th April 2026, whereupon he instructed them to re-open the matter to enable him to respond. Page 4 of 20

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13 The Applicant further avers that an application for review does not amount to re-litigation of matters in dispute, particularly where he was denied an opportunity to respond to the issues raised by the Respondent. 14 It is the Applicant’s case that his Application meets the threshold for review under Rule 74 of the Employment and Labour Relations Court (Procedure) Rules, which permits an aggrieved person to apply for review within a reasonable time upon discovery of new and important evidence not within his knowledge or which could not, with due diligence, have been produced at the material time, or on account of a mistake or error apparent on the face of the record, or for any other sufficient reason. Respondent’s Case 15 In opposition to the application, the Respondent filed a replying affidavit dated 21st May 2026, sworn by its Group Administration Manager, Moses Mwaura. 16 It is the Respondent's case that the present application is misconceived, incompetent, legally untenable, and constitutes a blatant abuse of the process of this Court, being founded on material non-disclosure and a deliberate omission of relevant facts, and premised on a misapprehension of both the law and the procedural history of the matter. Page 5 of 20

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17 The Respondent avers that on 4th November 2025 the matter came up before this Court in the presence of Counsel for both parties, including Counsel for the Applicant, whereupon a ruling date of 22 nd January 2026 was taken by consent, with leave granted to the Respondent to file its replying affidavit and submissions, and that the Applicant neither sought nor obtained leave to file any further affidavit or supplementary submissions. 18 It is the Respondent's case that the Applicant and his Counsel were accordingly fully aware of the ruling date well in advance and cannot now purport to claim ignorance of the proceedings or of the resultant orders, and contends that despite such knowledge, neither the Applicant nor his Counsel, Ms. Kyalo, raised any procedural complaint, objection or reservation on the date scheduled for delivery of the ruling. 19 The Respondent asserts that it is accordingly dishonest, misleading and an afterthought for the Applicant now to allege that the ruling was irregularly delivered or that the Court acted on an improper factual basis, the Applicant having duly participated filed in the his own submissions proceedings, and and fully having had unfettered access to the Court's Case Tracking System to verify the status of pleadings and submissions filed by all parties. Page 6 of 20

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20 The Respondent contends, on the advice of its advocates, that the Applicant's complaint lacks bona fides and amounts to an attempt to shift responsibility for his own inaction and acquiescence during the proceedings. 21 On the question of delay, the Respondent avers that the application was filed on or about 29 th April 2026, more than three months after delivery of the ruling, without sufficient, credible or lawful explanation, and contends that this delay is excessive, unexplained and prejudicial, contrary to the overriding objectives of the Court under Sections 1A and 1B of the Civil Procedure Act read with Article 159 of the Constitution. 22 It is the Respondent’s case that equity aids the vigilant and not the indolent, and that a party who knowingly sleeps on his rights cannot invoke the discretionary jurisdiction of the Court after unreasonable delay, the Applicant being guilty of laches, acquiescence and procedural indolence and undeserving of the equitable remedies sought. 23 The Respondent further contends that this Court is functus officio in respect of the issues conclusively determined in the ruling of 22nd January 2026, save only where statutory grounds for review are strictly established, and that the Applicant has failed to satisfy the threshold for review under Section 80 of the Civil Procedure Act and Order 45 Page 7 of 20

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Rule 1 of the Civil Procedure Rules, there being no discovery of new and important evidence, no error apparent on the face of the record, and no sufficient cause demonstrated to warrant interference with the ruling. 24 It is the Respondent's case that the application is merely an attempt to re-litigate issues already determined and to invite the Court to sit on appeal over its own decision, and that allowing it would occasion grave prejudice to the Respondent, undermine the finality of litigation, and amount to sanctioning an abuse of court process. Applicant’s Submissions 25 The Applicant anchored its submissions on Section 80 of the Civil Procedure Act and Rule 74 of the Employment and Labour Relations Court (Procedure) Rules, which was set out in full and argued to confer on the Court power to review a decree or order upon, inter alia, discovery of new and important evidence not within the applicant's knowledge or producible by due diligence at the material time, an error apparent on the face of the record, or any other sufficient reason, subject to the application being made without unreasonable delay. 26 It was submitted that the Applicant he has demonstrated, by his supporting and further affidavits, that the Court's dismissal of his claim was occasioned by material nonPage 8 of 20

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disclosure on the part of the Respondent, in that he was never served with the Response and submissions raising a new issue, namely, an alternative award allegedly made by the Director of Occupational Safety and Health Services of which he was unaware, and that he had since discovered additional evidence directly relevant to the matter, whose admission would influence or impact the outcome, warranting review, vacation or setting aside of the ruling. 27 It is the Applicant’s submission that the Respondent did not deny non-service, but instead contended that the Applicant ought to have downloaded the pleadings through the Case Tracking System; the Applicant argued that the introduction of e-filing and the CTS did not displace the fundamental rules of service, relying on Rule 25(6) and (7) of the Court's Rules, which require a party filing pleadings in response to a suit to effect service through a qualified process server within fourteen days and to file an affidavit of service. 28 The Applicant submitted that the resultant lack of service denied him an opportunity to respond to the issues raised, including the allegation of fraud which formed the main ground of dismissal, and that it was accordingly only fair that the matter be reopened. Reliance was placed on Fran Investments Limited v G4S Security Services Limited [2015] eKLR for the proposition that: “This is well understood in the legal reality that dismissal of a suit Page 9 of 20

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without hearing it on merit is such draconian act comparable only to the proverbial ‘’sword of the Damocles’’. 29 On the question of new evidence, it was submitted that the same could not have been obtained by due diligence for use at the trial, having been in the Respondent's possession and withheld through its failure to serve, and that it discloses a strong prima facie case of willful deception of the Court by the Respondent. 30 In support thereof, reliance was placed on the persuasive decision of the Supreme Court of India in the case of Ajit Kumar Rath vs State of Orisa & Others, as cited in Mwangi v Mboleko [2025] KEHC 15328 (KLR), for the Limited proposition that review may be exercised upon discovery of new and important evidence not within the applicant's knowledge, or on account of a patent error of law or fact, or any other sufficient reason analogous to those specified in the rule. 31 Reliance was further placed on Shanzu Investments Ltd v Commissioner of Lands [1993] KECA 36 (KLR), for the holding that any other sufficient reason for review refers to grounds analogous to error on the face of the record and discovery of new matter. 32 It is the Applicant’s submission that the Respondent has not demonstrated what prejudice it stands to suffer that Page 10 of 20

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cannot be compensated in costs should the claim be heard afresh, this being occasioned mainly by the Applicant's want of service, and that it is not enough merely to assert prejudice without tendering evidence to the Court's satisfaction that such prejudice cannot be so compensated; in any event, were the case reopened, the Respondent would retain the opportunity to amend its Response, occasioning no injustice. 33 The Applicant submitted that the application be allowed as prayed, to enable the parties to place all issues before the Court and for the real questions in controversy to be determined, the Respondent having ambushed the Applicant at an advanced stage of the proceedings by withholding evidence in its custody without service. Respondent’s Submissions 34 The Respondent submitted on three issues: whether the applicant has satisfied the legal threshold for review of the ruling delivered on 22nd January 2026; whether the applicant, having consented to the ruling date, participated in the proceedings, failed to raise any objection before delivery of the ruling, and subsequently delayed for over three months, is estopped from invoking the review jurisdiction of this honourable court; and whether this Honourable court is functus officio and therefore deprived of jurisdiction to reopen issues which have already been conclusively determined. Page 11 of 20

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35 On the threshold for review, the Respondent submitted that the jurisdiction to review a court’s own decision is a special statutory jurisdiction circumscribed by section 80 of the Civil Procedure Act, Order 45 Rule 1 of the Civil Procedure Rules, 2010, and Rule 33 of the Employment and Labour Relations Court (Procedure) Rules, 2016. 36 The Respondent argued that review is only available upon demonstration of discovery of new and important matter or evidence which, despite due diligence, was not within the applicant’s knowledge or could not be produced at the time of the decision; an error or mistake apparent on the face of the record; a judgment or ruling requiring clarification under Rule 33; or any other sufficient reason analogous to the prescribed grounds. 37 Relying on Republic v Public Procurement Administrative Review Board & 2 others [2018] eKLR, the Respondent submitted that section 80 of the Civil Procedure Act and Order 45 restrict the scope of review to the recognized statutory grounds and require that an application be made without unreasonable delay. It further relied on Pancras T. Swai v Kenya Breweries Limited [2014] eKLR for the proposition that review is a discretionary remedy available only on the grounds prescribed by law and is not intended to afford an unsuccessful litigant a further opportunity to re-argue a matter already determined. Page 12 of 20

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38 The Respondent argued that the Applicant’s complaint did not disclose any new and important matter or an error apparent on the face of the record. Its case was that the complaint regarding the alleged failure by the Respondent to file submissions concerned a matter that was within the Applicant’s knowledge before the ruling was delivered. 39 The Respondent submitted that the Applicant had already filed its own submissions and had access to the Judiciary’s Case Tracking System through which it could ascertain whether the Respondent had filed its submissions. Therefore, the alleged non-filing could not constitute a newly discovered matter which could not, despite due diligence, have been brought to the Court’s attention before the ruling. 40 The Respondent submitted that the circumstances complained of did not amount to an error apparent on the face of the record. It cited Tokesi Mambili & Others v Simion Litsanga, where the Court held that an applicant seeking review must demonstrate, inter alia, discovery of new and important evidence, an error apparent on the face of the record, or another sufficient reason. The Respondent argued that any omission complained of by the Applicant arose from the Applicant’s own failure to raise the issue before the ruling was delivered and could not properly be characterized as an error committed by the Court. Page 13 of 20

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41 It was further submitted that the Applicant has not established any other sufficient reason within the meaning of the applicable law. In this regard, the Respondent relied on Ajit Kumar Rath v State of Orisa & Others, 9 Supreme Court Cases 596, for the principle that review is not a means of securing a fresh hearing or correcting an allegedly erroneous view previously taken by the Court, and that the error must be patent and self-evident without requiring elaborate argument. The Respondent contended that the Applicant’s complaint required the Court to reconsider the effect of the alleged absence of the Respondent’s submissions and, consequently, to revisit the decision itself. 42 The Respondent submitted that the instant application is an appeal disguised as an application for review. It relied on National Bank Of Kenya Limited Vs Ndungu Njau [1997]eKLR, where the Court of Appeal stated: “A review may be granted whenever the court considers that it is necessary to correct an apparent error or omission on the part of the court. The error or omission must be selfevident and should not require an elaborate argument to be established.” 43 The Respondent submitted that the Applicant has not identified any accidental slip, clerical mistake or patent error in the ruling, but was instead seeking to persuade the Court that it ought to have reached a different Page 14 of 20

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conclusion because of the alleged absence of the Respondent’s submissions. It argued that such a challenge went to the correctness of the Court’s decision and was therefore properly a matter for an appeal rather than review. 44 The Respondent similarly relied on Evan Bwire v Andrew Aginda, Civil Appeal No. 147 of 2006, as cited in Stephen Githua Kimani v Nancy Wanjira Waruingi T/A Providence Auctioneers [2016] eKLR, for the proposition that review should not be used to reopen a matter afresh in the absence of strong grounds or genuinely new evidence. 45 The Respondent further invoked the principle of finality of litigation as cited in Hosea Nyandika Mosagwe & 2 others v County Government of Nyamira [2022] eKLR, it submitted that parties are required to present their facts, documents and evidence at the appropriate stage and cannot prosecute their cases piecemeal. The Respondent argued that allowing the Applicant to raise, after delivery of the ruling, a matter which could have been raised before the ruling would undermine the finality of proceedings and permit a litigant to cure an omission through review. 46 On the Applicant’s conduct, the Respondent submitted that the record demonstrated that the Applicant had participated in the proceedings with full knowledge of the Page 15 of 20

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relevant procedural events. It pointed out that on 4th November 2025, counsel for both parties attended Court and, by consent, took 22nd January 2026 as the date for delivery of the ruling. 47 It is therefore the Respondent’s submission that the Applicant knew when the Court would pronounce itself and had sufficient opportunity before that date to verify the status of the Respondent’s submissions or raise any concern with the Court. 48 The Respondent further submitted that when the ruling was delivered on 22nd January 2026, the Applicant was represented by counsel, yet no objection was raised before the Court proceeded to deliver the ruling. It argued that the Applicant thereafter waited until 29th April 2026, more than three months after the ruling, before filing the present application, without providing a satisfactory explanation for the delay. 49 The Respondent submitted that the Applicant’s conduct is an acquiescence and waiver, contending that a litigant could not remain silent on a procedural issue, participate in the proceedings and, upon receiving an unfavorable decision, seek to reopen the matter on the basis of that same issue. 50 In that regard, the Respondent submitted that the Applicant was estopped from invoking the Court’s review Page 16 of 20

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jurisdiction by its own conduct. It maintained that the ruling date had been taken by consent and that a consent order or direction is binding upon the parties and has contractual effect unless set aside on recognized grounds such as fraud, collusion, illegality or mistake. 51 It is the Respondent’s submission that there was no basis for the Applicant to challenge the consequences of a procedural course to which it had voluntarily assented merely because the eventual decision was unfavourable. 52 On the final issue, the Respondent submitted that upon hearing the matter and delivering its ruling on 22 nd January 2026, the Court had exhausted its adjudicative mandate in respect of the issues determined, subject only to the limited jurisdiction expressly conferred by statute. 53 The Respondent placed reliance on Telkom Kenya Limited v John O. Ochanda John O. Ochanda (Suing on His Behalf and on Behalf of 996 Former Employees of Telkom Kenya Ltd) [2014] eKLR, and the principle adopted therein from Jersey Evening Post Ltd Vs Ai Thani [2002] JLR 542 that: “The doctrine of functus officio is an enduring principle of law that prevents the reopening of a matter before a court that rendered the final decision thereon.” 54 It is the Respondent’s submission that the Court could only revisit its ruling if the Applicant first brought itself Page 17 of 20

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within the limited statutory grounds for review, which, in its view, the Applicant had failed to do. The Respondent maintained that any dissatisfaction with the Court’s conclusion ought to have been pursued through the appellate process and not by invoking review jurisdiction to reconsider the merits of the decision. 55 I have examined all the averments and submissions of the parties herein. The applicant has approached this court seeking orders for review on the ground of discovery of new and important material relevant to the matter. They aver that material in question was in the respondent’s possession and so they could not have responded to it. 56 This court orders/rulings indeed and has jurisdiction judgments as to per renew rule 74 its of Employment and Labour Relations Court (Court) Procedure Rules 2024 which states as follows: (1) A person who is aggrieved by a decree or an order from which an appeal is allowed but from which no appeal is preferred or from which no appeal is allowed, may within reasonable time, apply for a review of the judgment or ruling— (a) if there is discovery of a new and important matter or evidence which, despite the exercise of due diligence, was not within the knowledge of that person or could not be produced by that person at Page 18 of 20

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the time when the decree was passed or the order made; (b) on account of some mistake or error apparent on the face of the record; (c) if the judgment or ruling requires clarification; or (d) for any other sufficient reason. (2) An application for review of a decree or order of the Court under subrule (1) shall be made to the judge who passed the decree or made the order sought to be reviewed or to any other judge if that judge is not attached to the Court station. (3) A party seeking review of a decree or order of the Court shall apply to the Court by way of notice of motion supported by an affidavit and shall file a copy of the Judgment or decree or ruling or order to be reviewed. (4) The Court shall, upon hearing an application for review, deliver a ruling allowing or dismissing the application. (5) Where an application for review is granted, the Court may review its decision to conform to the findings of the review or quash its decision and order that the suit be heard again. (6) An order made for a review of a decree or order shall not be subject to further review. 57 Under (a) above, 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. Page 19 of 20

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58 In the application before court, despite the applicant averring that there is some discovery of an important material fact, such evidence has not been placed before court. 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. 59 If such evidence was before court, the court would look at it and determine if it is genuinely new, relevant and not withheld through negligence. 60 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. Dated, Signed and Delivered virtually at Nairobi this 1st Day of October 2026. HELLEN WASILWA JUDGE Page 20 of 20

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