Kenya County Government Workers Union v County Government of Bomet & 2 Others

employment, and the Court issued orders thereby quashing the notices, barring recruitment or replacement of employees, and directing payment of salaries and benefits within thirty days. 2. Despite these clear orders, the Respondents failed to comply and persisted in their defiance even after the Court of Appeal, in COACAPPL E029 of 2024, directed maintenance of the status quo, and later dismissed their appeal in COACA E084 of 2024 with costs, emphasizing that devolution cannot be abused to replace serving employees with political supporters. The Court therefore found the Respondents’ conduct to be habitual contempt, prejudicial to the Claimant’s members, and allowed the application dated 4th August 2025, granting prayers 2 to 4 and directing that a compliance report be filed before the Court on 26th February 2026. 3. Consequently, on 18th June 2026, this Honourable Court found the Governor of Bomet, Prof. Hillary Barchok, together with senior county officials and members of the Public Service Board, guilty of contempt for failing to comply with the judgment of Justice David Nderitu. The Contemnors, namely the Governor, County Secretary Simon Lang’at, CEC KERICHO ELRC CAUSE NO E016 OF 2022 PAGE RULING 2|

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Finance Milca C. Rono, Chairperson Eng. Alexander Ng’eno, CEO Emmy Chesang, retired HR Manager Erick Rono, and Board Members David Tuei, Isaiah Byegon, Paul Kirui, Cicilia Ngetich, and Millicent Soi were each convicted and sentenced to one month’s imprisonment. In addition, they were ordered to pay the Grievants all pending salaries, benefits, and emoluments within 14 days, with the Officer Commanding Station (OCS) Bomet directed to execute the warrants of arrest forthwith and ensure the contemnors were committed to prison. 4. Dissatisfied, the Respondents moved to the Court of Appeal, which consolidated three applications (E099, E102, and E104 of 2026) challenging the ELRC ruling of 18th June 2026. The Respondents sought stay of execution and warrants of arrest to be set aside, arguing that their appeals were arguable and would be rendered nugatory if they served jail terms. Justices Mativo, Murungi and Hassan, JA while sitting at Nakuru, held that the Respondents had demonstrated bona fide arguable grounds, including whether former officials could be held liable for contempt, whether section 21(1) of the Government Proceedings Act had been complied with, and the legality of the custodial sentence. On KERICHO ELRC CAUSE NO E016 OF 2022 PAGE RULING 3|

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the nugatory aspect, the Court of Appeal emphasized that loss of liberty is irreversible and cannot be remedied by a successful appeal. Consequently, the Court allowed the applications and stayed the ELRC ruling pending appeal. 5. The question now is whether this Honourable Court (ELRC) became functus officio after issuing its final orders. Indeed, the ELRC became functus officio, meaning its jurisdiction over the matter was spent, save for limited exceptions such as correcting clerical errors or enforcing its decree. Section 4 of the Employment and Labour Relations Court Act establishes the Court as a superior court of record with jurisdiction to hear and determine disputes relating to employment and labour relations, while section 12 delineates its powers to grant appropriate reliefs. Once those powers are fully exercised through a final judgment, the Court cannot reopen or re-litigate the matter. The doctrine of functus officio safeguards the principle of finality in litigation and ensures that dissatisfied parties pursue appellate remedies rather than invite the trial court to sit on appeal over its own orders. Thus, after issuing its judgment and committal orders, the KERICHO ELRC CAUSE NO E016 OF 2022 PAGE RULING 4|

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ELRC’s jurisdiction was exhausted, leaving the appellate court as the proper forum for ventilation of grievances. 6. The case to support the doctrine of functus officio is Telkom Kenya Ltd v Ochanda (Suing on His Own Behalf and on Behalf of 996 Former Employees of Telkom Kenya Ltd) [2014] KECA 600 (KLR), where the Court of Appeal stated as follows: “Functus officio is an enduring principle of law that prevents the reopening of a matter before a court that rendered the final decision thereon— The general rule that the final decision of a court cannot be re-opened derives from the decision of the English Court of Appeal in re-St Nazarire Co, (1879), 12 Ch. D 88. The basis for it was that the power to rehear was transferred by the Judicature Acts of the appellate division. The rule applied only after the formal judgment had been drawn up, issued and entered, and was subject to two exceptions---” 7. In Odinga v Independent Electoral & Boundaries Commission & 3 Others (Petition 5,4 & 3 of 2013 (Consolidated)) [2013] KESC 8, cited with KERICHO ELRC CAUSE NO E016 OF 2022 PAGE RULING 5|

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approval an excerpt from an article by Daniel Malan Pretorius entitled, “The Origins of the Functus Officio Doctrine, with Special Reference to its Application in Administrative Law” (2005) 122 SALJ 832 which reads: “The functus officio doctrine is one of the mechanisms by means of which the law gives expression to the principle of finality. According to this doctrine, a person who is vested with adjudicative or decision making powers may, as a general rule, exercise those powers only once in relation to the same matter...The [principle] is that once such a decision has been given, it is (subject to any right of appeal to a superior body or functionary) final and conclusive. Such a decision cannot be reviewed or varied by the decision maker.” 8. There is exception to the doctrine of functus officio set out in section 99 of the Civil Procedure Act which provides as follows: “Clerical or arithmetical mistakes in judgments, decrees or orders, or errors arising therein from any accidental slip or omission, may at any time be corrected by the court either of its own motion or on the application of any of the parties.” KERICHO ELRC CAUSE NO E016 OF 2022 PAGE RULING 6|

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9. In John Gilbert Ouma v Kenya Ferry Services Limited [2021] KEHC 7107 (KLR), the court observed that the doctrine of functus officio does not bar a court from entertaining matters it has already decided for purposes of enforcement or correction of accidental slips, but it does prevent the court from revisiting the merits of a dispute once a final judgment has been entered and a decree issued. In that case, the Court held that the trial court was indeed functus officio and found that the trial magistrate erred in striking out the appellant’s suit on the basis of want of jurisdiction, since the merits of the matter had already been conclusively determined. 10.In light of the foregoing, it is evident that once the Employment and Labour Relations Court delivered its final judgment and subsequent committal orders, its jurisdiction over the matter was spent. The doctrine of functus officio, as affirmed in Telkom Kenya Ltd v Ochanda [2014] KECA 600 and Odinga v IEBC & Others [2013] KESC 8, prevents a trial court from re-engaging with the merits of a matter once a final decision has been rendered, save for the narrow exceptions under KERICHO ELRC CAUSE NO E016 OF 2022 PAGE RULING 7|

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section 99 of the Civil Procedure Act relating to clerical or accidental errors. As emphasized in John Gilbert Ouma v Kenya Ferry Services Ltd [2021] KEHC 7107, functus officio does not bar enforcement of existing orders but prohibits merit-based re-litigation. 11.Accordingly, the ELRC, having issued its judgment and committal orders, could not revisit the merits of the dispute. The proper forum for ventilating grievances was, and remains, the Court of Appeal. The matter is therefore functus officio, and this Court cannot reopen or entertain any other proceedings past or future. In the alternative, the Respondent may continue with the conclusion of the cases they filed to the Court of Appeal, and the Court of Appeal will give its final decision. 12. All pending applications, including the application dated 26th June 2026 filed by Milchah Chepkoech and the oral application by the Claimant to refer the file to the Deputy Registrar for taxation of Bill of Costs, can only now be litigated at the Court of Appeal. 13.So, this file is marked as closed in view of the aforesaid Court of Appeal ruling. KERICHO ELRC CAUSE NO E016 OF 2022 PAGE RULING 8|

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Orders accordingly. Dated, Signed and Delivered virtually at Nakuru this 6th Day of October, 2026. ANNA NGIBUINI MWAURE JUDGE ORDER In view of the declaration of measures restricting Court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules, which requires that all judgments and rulings be pronounced in open Court. In permitting this course, this Court has been guided by Article 159(2)(d) of the Constitution which requires the Court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 1B of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) which impose on this Court the duty of the Court, inter alia, to use suitable technology to enhance the overriding KERICHO ELRC CAUSE NO E016 OF 2022 PAGE RULING 9|

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objective which proportionate is and to facilitate affordable just, expeditious, resolution of civil disputes. A signed copy will be availed to each party upon payment of Court fees. ANNA NGIBUINI MWAURE JUDGE KERICHO ELRC CAUSE NO E016 OF 2022 PAGE RULING 10 |

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