'
Introduction
1. By a Notice of Motion Application dated 21st January 2025, the Respondent/Applicant seeks the following orders;
I. THAT the Court be pleased to review its Ruling delivered on the 26th September, 2024, that dismissed the Respondent/Applicant’s Application dated 15th March 2024.
II. THAT there be a stay of the present proceedings in light of the Ruling and all consequential orders issued on 26th September 2024, pending the hearing and determination of the instant Application.
III. THAT the Honourable Court be pleased to review and vacate /set aside the Ruling of 26th September 2024 and subsequent orders/directions issued on 26th September 2024 therein.
IV. THAT costs for this Application abide in the outcome of the suit, and.
V. Any such other order that the Honourable Court may deem just and appropriate in the circumstances.
2. The application is founded on the grounds stated on its face, supported by an affidavit sworn by Mr. George Mogaka.
3. The Claimant/Respondent resisted the application on the grounds set out in the replying affidavit sworn on 7th February, 2025, by Judith A. Guserwa.
The Application
4. The Respondent/Applicant stated that through an application dated 15th March 2024, they sought to be heard in their defense of the suit herein, having previously relied on in-house Counsel and now having retained external Counsel to conduct the suit on their behalf.
5. THAT by a Ruling of 26th September 2024, this Court dismissed the Application for being res judicata, the Application dated 7th November 2022 that was compromised and not determined on merit at all.
6. It is evident that an error exists on record. The Court declared the application dated 15th March 2024 to be res judicata, even though the underlying facts of the two applications were entirely different.
7. This Court made an error in its ruling when it stated that it had already dealt with the matter in the Application dated 7th November 2022, yet this said application was disposed of by consent without the Court hearing the application on its merits.
8. The ruling delivered on 26th September 2024 is significantly prejudicial to their interests as it effectively prevents them from contesting the accuracy of the Claimant’s assertions.
9. The Application dated 15th March 2024 was necessitated by the fact that the Respondent/ Applicant had just instructed a new Counsel on record after their in-house Counsel, who had the full conduct of the matter, had left their employment, without arranging for the further hearing process of this suit. While the Application dated 7th November 2022 was premised on the fact that, due to the in-house counsel’s non-attendance in court, the matter proceeded ex parte.
10. That the Claimant’s claim is for an amount of KShs. 473.00 against the Respondent, who is a public institution relying on taxpayer funds allocated annually through the National Treasury. Considering the amount, the interests of justice require that the matter be resolved after an inter partes hearing on the merits.
11. The instant Application has been filed timeously without unreasonable delay.
The response to the Notice of Motion Application.
12. The Claimant/Respondent responded that the hearing date of 2nd November 2022 was taken by consent of both parties in court. The Respondent/Applicant was therefore fully aware that the hearing would proceed virtually on that date.
13. It was further stated that during the hearing of the main claim, the Respondent/Applicant’s then Advocate, Mr Polycarp Kuchio Tindi, was present on the virtual platform but failed or neglected to address the Court despite the matter being called out twice on the cause list.
14. The Claimant/Respondent argued that the Application dated 7th November 2022 was decided by mutual consent of both parties and formally adopted as an order of the Court. The claim that it was not decided on its merits is therefore incorrect.
15. It was further stated that although the judgment was scheduled for 28th March 2024, it was not delivered because the Respondent/Applicant had filed another unserved application dated 15th March 2024. This application was subsequently dismissed on the grounds of being res judicata of the earlier application dated 7th November 2022.
16. The Claimant/Respondent argued that simply replacing Advocates did not alter the fact that the subsequent Application was res judicata, and there was an unexplained delay in seeking a review of the Court’s orders issued on 26th September 2024, which demonstrated indolence on the part of the Respondent/Applicant.
17. The Application is a baseless afterthought, made in bad faith and an abuse of the Court process, solely designed to delay justice and waste judicial time.
18. The Claimant/Respondent urged the Court to disallow the Application and permit the matter to proceed to its logical conclusion, asserting that no sufficient cause has been demonstrated to justify the orders sought.
Respondent/Applicant’s Rejoinder through the Further Affidavit.
19. The Respondent/Applicant stated that their former in-house counsel, Mr Polycarp Kuchio Tindi, left employment without properly handing over or informing them of the matters he was handling, including the present suit.
20. In response to the Claimant/Respondent’s assertion that Mr Tindi was present during the hearing on 2nd November 2022 but failed to address the Court, the Respondent/Applicant argued that no proof has been provided to support that claim. They maintained that it would be illogical for an instructed Advocate to fail to respond when a matter is called out.
21. The Respondent/Applicant noted that the Court’s own record, as stated in paragraph 21 of its Ruling dated 26th September 2024, confirms that neither the Respondent/Applicant nor its counsel was present when the matter was called out twice. This directly contradicts the Claimant/Respondent’s assertions.
22. In response to the argument that the earlier Application was decided on its merits, the Respondent/Applicant maintained that the Application dated 7th November 2022 was only compromised by consent to facilitate the scheduling of a new hearing, and was not decided on its substantive merits.
23. It was further stated that the allegation that the current Application was “sneaked in” is false. Upon taking over conduct of the matter and learning of the pending Judgment, their current counsel, M/S Mamra Sitacus Law LLP, promptly filed and served the Application to arrest the Judgment and seek an opportunity to be heard.
24. The Respondent/Applicant emphasised that the right to be heard is constitutionally protected under Articles 50 and 159 of the Constitution, and invoking that right cannot be deemed improper.
25. It was asserted that the Claimant/Respondent was duly served with the Application dated 15th March 2024 via email on 4th April 2024, as evidenced by a printout annexed to the affidavit.
26. The Respondent/Applicant contended that although a change of advocates does not operate against the doctrine of res judicata, the two applications were founded on different factual circumstances and separate grounds. Consequently, the Application dated 15th March 2024 could not be barred by res judicata.
27. They explained that there was no delay in filing the present application. The ruling of 26th September 2024 was only made available after fourteen days, and the application was filed immediately thereafter.
28. The Respondent/Applicant further submitted that the Court made an apparent error by failing to recognise the differences between the two applications—one based on confusion over virtual attendance and the other arising from the former counsel’s resignation and failure to notify them of the hearing date.
29. It was contended that the Court’s omission to consider these distinct grounds constituted an error apparent on the face of the record, thus justifying a review.
30. The Respondent/Applicant therefore prayed that the Court allow the Application to review the impugned Ruling and grant them an opportunity to be heard in the interest of justice.
Respondent/Applicant’s Submissions
31. The Respondent/Applicant submitted that the present Application, dated 21st January 2025, seeks a review of the Court’s Ruling delivered on 26th September 2024, which dismissed its earlier request to be heard, on grounds of res judicata. They argued that the Court erred in so finding, as the earlier Application dated 7th November 2022 sought a hearing de novo, while the current one merely seeks to cross-examine the Claimant and present the Respondent’s defence.
32. Relying on Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules, the Applicant submitted that a Court may review its orders where new evidence has emerged, an error is apparent on the face of the record, or there exists any other sufficient reason.
33. The Applicant contended that the Court wrongly applied the doctrine of res judicata. The earlier Application arose from Counsel’s confusion over hearing modalities, whereas the present one is due to a lack of notice following the Counsel’s resignation. The two Applications, therefore, raise distinct issues.
34. Citing A.N.M v P.M.N [2016] eKLR and Nancy Mwangi t/a Worthlin Marketers v Airtel Networks (K) Ltd & 2 Others [2014] eKLR, the Applicant argued that res judicata only applies when the same issue was determined on its merits between the same parties, which is not the case here.
35. Alternatively, the Applicant submitted that there exists sufficient reason to warrant review. Citing Sadar Mohamed v Charan Singh (1959) EA 793, Yusuf v Nokrach (1971) EA 104, and Wangechi Kimita & Another v Mutahi Wakabiru (CA No. 80 of 1985), it was argued that courts possess broad discretion to review their decisions where justice necessitates.
36. The Applicant asserted that its Defence raises triable issues, especially regarding the lawfulness of the Claimant’s termination and the validity of the remedies sought. Since the claim involves public funds amounting to KShs. 87,967,473, the Applicant argued that the matter should be determined on its merits in the public interest. Relying on Nakumatt Holdings Ltd v Commissioner of Value Added Tax [2011] eKLR and Republic v Kenya Revenue Authority ex parte Paragon Electronics Ltd [2015] eKLR, the Applicant maintained that courts retain residual powers to correct their own errors.
Claimant’s Submissions
37. The Respondent’s application dated 7th November 2022 aimed to stay the proceedings and set aside the ex parte proceedings. This application was resolved by mutual consent of both parties, which was adopted as the Court’s order.
38. Despite this, the Respondent filed another application dated 15th March 2024, which the Court dismissed as being res judicata, since it raised similar issues already determined in the earlier application. Citing Section 7 of the Civil Procedure Act, the Claimant argues that the matter had already been heard and decided, and that the mere change of advocates does not alter that fact.
39. The Claimant argues that the Respondent/Applicant is not entitled to the orders sought because the current application was filed with unreasonable delay, demonstrating indolence. Additionally, the Respondent has not met the legal threshold for review.
40. In the case of George Orito Kuya v Vegi Vegi Two Thousand and Seven Ltd (ELRC Cause No. 1388 of 2014), the Court held that a matter already determined cannot be re-litigated, as doing so amounts to a second bite at the same cherry.
41. In Benson Otieno Dacho v. Ellams Products Ltd (ELRC Cause No. 1482 of 2017), the court dismissed a second application that raised issues already adjudicated in a prior proceeding, thereby applying the doctrine of res judicata.
Analysis and determination
Issue
Whether this Court should set aside the ex parte proceedings in this matter, arrest the delivery of the Judgement, and allow the Respondent/Applicant herein to participate in the hearing.
42. The Respondent/Applicant previously submitted an application dated 7th November 2022. On 16 January 2023, the court, after suggesting a compromise to expedite proceedings, the parties recorded a consent order by which the earlier application was allowed to the limited extent that;
i. The ex parte proceedings of 2nd November 2022 were set aside so the Respondent could cross-examine the Claimant;
ii. the Respondent was given liberty to present its case; and
iii. Hearing was listed for 13 February 2023.
The consent by the parties was adopted as an order of this Court.
43. On 13th February 2023, when the matter was brought before Justice Ndolo for mention and directions, as this Court [Justice Ocharo Kebira] was out of station on official duties, the suit was rescheduled for hearing on 11th May 2023, in the presence of Counsel for the Respondent/Applicant. Due to connectivity issues faced by the Court, the matter did not proceed on this date. It was rescheduled for 6th July 2023, for a hearing in open court.
44. On 6th July 2023, the Respondent’s counsel failed to appear in open court, and after waiting, the court deemed the Respondent’s case closed and proceeded to reserve the matter for Judgment.
45. The Respondent/Applicant then filed the current application dated 15th March 2024, seeking orders that were substantially the same as those requested in the application of 7th November 2022. In the application dated 15th March 2024, the Applicant was sought orders;
a) Spent.
b) That the ex parte proceedings of the said hearing of this matter before this Honourable Court, including any closure of the parties '' cases, be set aside and the Claim be set down for hearing of the parties on merit.
c) That this Honourable Court be pleased to arrest the delivery of the Judgement slated for 28th March 2024 in the current suit pending hearing and final determination of this suit.
d) That the Honourable Court be pleased to allow the Respondent/Applicant to cross-examine the Plaintiff/Respondent''s witness and to further be allowed to call the Respondent/Witness to testify for the purpose of hearing of the main suit.
e) That leave be granted to the Respondent/Applicant herein to be allowed to defend this suit on merit and thereafter file and serve its Submissions to the Claim to tie up their case.
f) That the costs for this Application be provided for; and
g) Such other orders the Honourable Court may deem just and appropriate in the circumstances.
46.
47. It is important to emphasise that, contrary to the understanding of the Respondent/ Applicant, their application dated 15th March 2024, was not dismissed solely based on res judicata. It was also rejected due to its constituting an abuse of the court process and their conduct, which demonstrated a lack of genuine interest in the resolution of the suit. The instant application is therefore a product of deliberate or otherwise, reading of the Court’s ruling narrowly.
48. An objective reading of the Respondent/ Applicant’s two applications mentioned hereinabove would reveal and ought to have revealed to the Respondent/ Applicant that they both;
I. Targeted the proceedings herein that had culminated in the hearing of the Claimant’s case and closure of the Respondent’s case.
II. Were aimed at the proceedings being reopened, allowing the Claimant to be re-examined, and permitting the Respondent to place forth its defence by calling a witness to testify.
III. Were anchored mainly on similar facts.
IV. Were conclusively determined.
49. It is necessary to reiterate that while this Court possesses the statutory authority to review and set aside its orders or judgments, such authority is not unbounded. It is exercised within the limitations established by the law, specifically Section 80 of the Civil Procedure Act, Order 45 of the Civil Procedure Rules, and the provisions outlined in the Employment and Labour Relations Court [Procedure Rules]. An Applicant can only succeed in their application for review, only where they can demonstrate that there is an error apparent on the face of the record, or there has been discovery of a new and important matter or evidence which, after the exercise of due diligence, was not within their knowledge, or there exists a sufficient reason to attract the orders.
50. The Respondent’s application is based on the grounds that there is an apparent error on the face of the record and that there is a sufficient reason to justify granting the orders sought.
51. The Respondent argues bravely, but incorrectly, that the first application was not decided on its merits as it was only resolved through a consent. It is challenging to understand why the Respondent claims ignorance of the fact that consents and even admissions are methods by which a Court can definitively resolve issues in dispute between the parties.
52. To argue that a consent which has properly settled issues in a suit or application cannot be subjected to the doctrine of res judicata to prevent re-litigating those issues again contradicts the recognised legal importance of consents in civil proceedings.
53. Section 7 of the Civil Procedure Act provides;
“ 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 and finally decided by such Court.”
54. I observe that the Respondent/Applicant heavily relied on the fact that the two applications were based on different facts, and thus, res judicata would not apply. Under the relevant provision, the key focus is on the issues that needed to be decided and how the Court resolved them.
55. By reason of the foregoing premises, I come to the inescapable conclusion that the Respondent has miserably failed to meet the legal threshold for granting the review orders sought. Consequently, their application herein dated 21st January 2025 is dismissed with costs.
56. Judgment in this matter shall be delivered on a date to be given at the delivery of this ruling. Orders accordingly.
Read Signed and Delivered this 16th Day of October 2025.
'
Introduction
1. By a Notice of Motion Application dated 21st January 2025, the Respondent/Applicant seeks the following orders;
I. THAT the Court be pleased to review its Ruling delivered on the 26th September, 2024, that dismissed the Respondent/Applicant’s Application dated 15th March 2024.
II. THAT there be a stay of the present proceedings in light of the Ruling and all consequential orders issued on 26th September 2024, pending the hearing and determination of the instant Application.
III. THAT the Honourable Court be pleased to review and vacate /set aside the Ruling of 26th September 2024 and subsequent orders/directions issued on 26th September 2024 therein.
IV. THAT costs for this Application abide in the outcome of the suit, and.
V. Any such other order that the Honourable Court may deem just and appropriate in the circumstances.
2. The application is founded on the grounds stated on its face, supported by an affidavit sworn by Mr. George Mogaka.
3. The Claimant/Respondent resisted the application on the grounds set out in the replying affidavit sworn on 7th February, 2025, by Judith A. Guserwa.
The Application
4. The Respondent/Applicant stated that through an application dated 15th March 2024, they sought to be heard in their defense of the suit herein, having previously relied on in-house Counsel and now having retained external Counsel to conduct the suit on their behalf.
5. THAT by a Ruling of 26th September 2024, this Court dismissed the Application for being res judicata, the Application dated 7th November 2022 that was compromised and not determined on merit at all.
6. It is evident that an error exists on record. The Court declared the application dated 15th March 2024 to be res judicata, even though the underlying facts of the two applications were entirely different.
7. This Court made an error in its ruling when it stated that it had already dealt with the matter in the Application dated 7th November 2022, yet this said application was disposed of by consent without the Court hearing the application on its merits.
8. The ruling delivered on 26th September 2024 is significantly prejudicial to their interests as it effectively prevents them from contesting the accuracy of the Claimant’s assertions.
9. The Application dated 15th March 2024 was necessitated by the fact that the Respondent/ Applicant had just instructed a new Counsel on record after their in-house Counsel, who had the full conduct of the matter, had left their employment, without arranging for the further hearing process of this suit. While the Application dated 7th November 2022 was premised on the fact that, due to the in-house counsel’s non-attendance in court, the matter proceeded ex parte.
10. That the Claimant’s claim is for an amount of KShs. 473.00 against the Respondent, who is a public institution relying on taxpayer funds allocated annually through the National Treasury. Considering the amount, the interests of justice require that the matter be resolved after an inter partes hearing on the merits.
11. The instant Application has been filed timeously without unreasonable delay.
The response to the Notice of Motion Application.
12. The Claimant/Respondent responded that the hearing date of 2nd November 2022 was taken by consent of both parties in court. The Respondent/Applicant was therefore fully aware that the hearing would proceed virtually on that date.
13. It was further stated that during the hearing of the main claim, the Respondent/Applicant’s then Advocate, Mr Polycarp Kuchio Tindi, was present on the virtual platform but failed or neglected to address the Court despite the matter being called out twice on the cause list.
14. The Claimant/Respondent argued that the Application dated 7th November 2022 was decided by mutual consent of both parties and formally adopted as an order of the Court. The claim that it was not decided on its merits is therefore incorrect.
15. It was further stated that although the judgment was scheduled for 28th March 2024, it was not delivered because the Respondent/Applicant had filed another unserved application dated 15th March 2024. This application was subsequently dismissed on the grounds of being res judicata of the earlier application dated 7th November 2022.
16. The Claimant/Respondent argued that simply replacing Advocates did not alter the fact that the subsequent Application was res judicata, and there was an unexplained delay in seeking a review of the Court’s orders issued on 26th September 2024, which demonstrated indolence on the part of the Respondent/Applicant.
17. The Application is a baseless afterthought, made in bad faith and an abuse of the Court process, solely designed to delay justice and waste judicial time.
18. The Claimant/Respondent urged the Court to disallow the Application and permit the matter to proceed to its logical conclusion, asserting that no sufficient cause has been demonstrated to justify the orders sought.
Respondent/Applicant’s Rejoinder through the Further Affidavit.
19. The Respondent/Applicant stated that their former in-house counsel, Mr Polycarp Kuchio Tindi, left employment without properly handing over or informing them of the matters he was handling, including the present suit.
20. In response to the Claimant/Respondent’s assertion that Mr Tindi was present during the hearing on 2nd November 2022 but failed to address the Court, the Respondent/Applicant argued that no proof has been provided to support that claim. They maintained that it would be illogical for an instructed Advocate to fail to respond when a matter is called out.
21. The Respondent/Applicant noted that the Court’s own record, as stated in paragraph 21 of its Ruling dated 26th September 2024, confirms that neither the Respondent/Applicant nor its counsel was present when the matter was called out twice. This directly contradicts the Claimant/Respondent’s assertions.
22. In response to the argument that the earlier Application was decided on its merits, the Respondent/Applicant maintained that the Application dated 7th November 2022 was only compromised by consent to facilitate the scheduling of a new hearing, and was not decided on its substantive merits.
23. It was further stated that the allegation that the current Application was “sneaked in” is false. Upon taking over conduct of the matter and learning of the pending Judgment, their current counsel, M/S Mamra Sitacus Law LLP, promptly filed and served the Application to arrest the Judgment and seek an opportunity to be heard.
24. The Respondent/Applicant emphasised that the right to be heard is constitutionally protected under Articles 50 and 159 of the Constitution, and invoking that right cannot be deemed improper.
25. It was asserted that the Claimant/Respondent was duly served with the Application dated 15th March 2024 via email on 4th April 2024, as evidenced by a printout annexed to the affidavit.
26. The Respondent/Applicant contended that although a change of advocates does not operate against the doctrine of res judicata, the two applications were founded on different factual circumstances and separate grounds. Consequently, the Application dated 15th March 2024 could not be barred by res judicata.
27. They explained that there was no delay in filing the present application. The ruling of 26th September 2024 was only made available after fourteen days, and the application was filed immediately thereafter.
28. The Respondent/Applicant further submitted that the Court made an apparent error by failing to recognise the differences between the two applications—one based on confusion over virtual attendance and the other arising from the former counsel’s resignation and failure to notify them of the hearing date.
29. It was contended that the Court’s omission to consider these distinct grounds constituted an error apparent on the face of the record, thus justifying a review.
30. The Respondent/Applicant therefore prayed that the Court allow the Application to review the impugned Ruling and grant them an opportunity to be heard in the interest of justice.
Respondent/Applicant’s Submissions
31. The Respondent/Applicant submitted that the present Application, dated 21st January 2025, seeks a review of the Court’s Ruling delivered on 26th September 2024, which dismissed its earlier request to be heard, on grounds of res judicata. They argued that the Court erred in so finding, as the earlier Application dated 7th November 2022 sought a hearing de novo, while the current one merely seeks to cross-examine the Claimant and present the Respondent’s defence.
32. Relying on Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules, the Applicant submitted that a Court may review its orders where new evidence has emerged, an error is apparent on the face of the record, or there exists any other sufficient reason.
33. The Applicant contended that the Court wrongly applied the doctrine of res judicata. The earlier Application arose from Counsel’s confusion over hearing modalities, whereas the present one is due to a lack of notice following the Counsel’s resignation. The two Applications, therefore, raise distinct issues.
34. Citing A.N.M v P.M.N [2016] eKLR and Nancy Mwangi t/a Worthlin Marketers v Airtel Networks (K) Ltd & 2 Others [2014] eKLR, the Applicant argued that res judicata only applies when the same issue was determined on its merits between the same parties, which is not the case here.
35. Alternatively, the Applicant submitted that there exists sufficient reason to warrant review. Citing Sadar Mohamed v Charan Singh (1959) EA 793, Yusuf v Nokrach (1971) EA 104, and Wangechi Kimita & Another v Mutahi Wakabiru (CA No. 80 of 1985), it was argued that courts possess broad discretion to review their decisions where justice necessitates.
36. The Applicant asserted that its Defence raises triable issues, especially regarding the lawfulness of the Claimant’s termination and the validity of the remedies sought. Since the claim involves public funds amounting to KShs. 87,967,473, the Applicant argued that the matter should be determined on its merits in the public interest. Relying on Nakumatt Holdings Ltd v Commissioner of Value Added Tax [2011] eKLR and Republic v Kenya Revenue Authority ex parte Paragon Electronics Ltd [2015] eKLR, the Applicant maintained that courts retain residual powers to correct their own errors.
Claimant’s Submissions
37. The Respondent’s application dated 7th November 2022 aimed to stay the proceedings and set aside the ex parte proceedings. This application was resolved by mutual consent of both parties, which was adopted as the Court’s order.
38. Despite this, the Respondent filed another application dated 15th March 2024, which the Court dismissed as being res judicata, since it raised similar issues already determined in the earlier application. Citing Section 7 of the Civil Procedure Act, the Claimant argues that the matter had already been heard and decided, and that the mere change of advocates does not alter that fact.
39. The Claimant argues that the Respondent/Applicant is not entitled to the orders sought because the current application was filed with unreasonable delay, demonstrating indolence. Additionally, the Respondent has not met the legal threshold for review.
40. In the case of George Orito Kuya v Vegi Vegi Two Thousand and Seven Ltd (ELRC Cause No. 1388 of 2014), the Court held that a matter already determined cannot be re-litigated, as doing so amounts to a second bite at the same cherry.
41. In Benson Otieno Dacho v. Ellams Products Ltd (ELRC Cause No. 1482 of 2017), the court dismissed a second application that raised issues already adjudicated in a prior proceeding, thereby applying the doctrine of res judicata.
Analysis and determination
Issue
Whether this Court should set aside the ex parte proceedings in this matter, arrest the delivery of the Judgement, and allow the Respondent/Applicant herein to participate in the hearing.
42. The Respondent/Applicant previously submitted an application dated 7th November 2022. On 16 January 2023, the court, after suggesting a compromise to expedite proceedings, the parties recorded a consent order by which the earlier application was allowed to the limited extent that;
i. The ex parte proceedings of 2nd November 2022 were set aside so the Respondent could cross-examine the Claimant;
ii. the Respondent was given liberty to present its case; and
iii. Hearing was listed for 13 February 2023.
The consent by the parties was adopted as an order of this Court.
43. On 13th February 2023, when the matter was brought before Justice Ndolo for mention and directions, as this Court [Justice Ocharo Kebira] was out of station on official duties, the suit was rescheduled for hearing on 11th May 2023, in the presence of Counsel for the Respondent/Applicant. Due to connectivity issues faced by the Court, the matter did not proceed on this date. It was rescheduled for 6th July 2023, for a hearing in open court.
44. On 6th July 2023, the Respondent’s counsel failed to appear in open court, and after waiting, the court deemed the Respondent’s case closed and proceeded to reserve the matter for Judgment.
45. The Respondent/Applicant then filed the current application dated 15th March 2024, seeking orders that were substantially the same as those requested in the application of 7th November 2022. In the application dated 15th March 2024, the Applicant was sought orders;
a) Spent.
b) That the ex parte proceedings of the said hearing of this matter before this Honourable Court, including any closure of the parties '' cases, be set aside and the Claim be set down for hearing of the parties on merit.
c) That this Honourable Court be pleased to arrest the delivery of the Judgement slated for 28th March 2024 in the current suit pending hearing and final determination of this suit.
d) That the Honourable Court be pleased to allow the Respondent/Applicant to cross-examine the Plaintiff/Respondent''s witness and to further be allowed to call the Respondent/Witness to testify for the purpose of hearing of the main suit.
e) That leave be granted to the Respondent/Applicant herein to be allowed to defend this suit on merit and thereafter file and serve its Submissions to the Claim to tie up their case.
f) That the costs for this Application be provided for; and
g) Such other orders the Honourable Court may deem just and appropriate in the circumstances.
46.
47. It is important to emphasise that, contrary to the understanding of the Respondent/ Applicant, their application dated 15th March 2024, was not dismissed solely based on res judicata. It was also rejected due to its constituting an abuse of the court process and their conduct, which demonstrated a lack of genuine interest in the resolution of the suit. The instant application is therefore a product of deliberate or otherwise, reading of the Court’s ruling narrowly.
48. An objective reading of the Respondent/ Applicant’s two applications mentioned hereinabove would reveal and ought to have revealed to the Respondent/ Applicant that they both;
I. Targeted the proceedings herein that had culminated in the hearing of the Claimant’s case and closure of the Respondent’s case.
II. Were aimed at the proceedings being reopened, allowing the Claimant to be re-examined, and permitting the Respondent to place forth its defence by calling a witness to testify.
III. Were anchored mainly on similar facts.
IV. Were conclusively determined.
49. It is necessary to reiterate that while this Court possesses the statutory authority to review and set aside its orders or judgments, such authority is not unbounded. It is exercised within the limitations established by the law, specifically Section 80 of the Civil Procedure Act, Order 45 of the Civil Procedure Rules, and the provisions outlined in the Employment and Labour Relations Court [Procedure Rules]. An Applicant can only succeed in their application for review, only where they can demonstrate that there is an error apparent on the face of the record, or there has been discovery of a new and important matter or evidence which, after the exercise of due diligence, was not within their knowledge, or there exists a sufficient reason to attract the orders.
50. The Respondent’s application is based on the grounds that there is an apparent error on the face of the record and that there is a sufficient reason to justify granting the orders sought.
51. The Respondent argues bravely, but incorrectly, that the first application was not decided on its merits as it was only resolved through a consent. It is challenging to understand why the Respondent claims ignorance of the fact that consents and even admissions are methods by which a Court can definitively resolve issues in dispute between the parties.
52. To argue that a consent which has properly settled issues in a suit or application cannot be subjected to the doctrine of res judicata to prevent re-litigating those issues again contradicts the recognised legal importance of consents in civil proceedings.
53. Section 7 of the Civil Procedure Act provides;
“ 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 and finally decided by such Court.”
54. I observe that the Respondent/Applicant heavily relied on the fact that the two applications were based on different facts, and thus, res judicata would not apply. Under the relevant provision, the key focus is on the issues that needed to be decided and how the Court resolved them.
55. By reason of the foregoing premises, I come to the inescapable conclusion that the Respondent has miserably failed to meet the legal threshold for granting the review orders sought. Consequently, their application herein dated 21st January 2025 is dismissed with costs.
56. Judgment in this matter shall be delivered on a date to be given at the delivery of this ruling. Orders accordingly.
Read Signed and Delivered this 16th Day of October 2025.
'