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ELRCDismissedNot stated in judgment (Claimant/Applicant's Notice of Motion dated 30th July 2024)· [2025] KEELRC 99 (KLR)

Mohamed v Judicial Service Commission (Employment and Labour Relations Cause E645 of 2022) [2025] KEELRC 99 (KLR)

Employment and Labour Relations Court
24 January 2025
AMANNA NGIBUINI MWAURE
2,730 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court refused to revive an application the claimant had withdrawn himself, confirming that withdrawal ends a case and review is no workaround.

What this practically means

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Executive summary

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The Claimant, Bishar Adan Mohamed, moved the court by Notice of Motion dated 30th July 2024 seeking review, discharge or vacation of the orders of 28th June 2024 that dismissed his application dated 8th December 2023, and reinstatement and allowance of that application. He explained that on 8th December 2023 he filed, then withdrew, one application, and filed a different application shortly afterwards; he contended the court mistakenly dismissed the second application as withdrawn and omitted to consider his supplementary affidavit of 25th March 2024 distinguishing the two applications. The Respondent, the Judicial Service Commission, through its Chief Registrar, opposed the motion, asserting that a notice of withdrawal takes immediate effect, that the withdrawn application ceased to exist leaving the court without jurisdiction over it, and that the information sought (disciplinary committee proceedings, recommendations and dismissal minutes) was privileged. Both parties filed written submissions. The court, applying the Supreme Court's decision in Salat v IEBC on the right of withdrawal and the res judicata principles in IEBC v Maina Kiai, compared the prayers in the withdrawn and subsequent applications and found them substantially the same save for one prayer for witness statements. It held that reviving the withdrawn application through review would amount to the court appealing its own ruling of 28th June 2024, that the review principles were not satisfied, and it dismissed the application, directing that costs be in the cause.

Key legal issues

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01

Whether the court should review and set aside its orders of 28th June 2024 dismissing the withdrawn application dated 8th December 2023

Holding

The application for review fails; the two applications filed on 8th December 2023 are substantially similar, the second having been properly withdrawn, and no grounds for review exist

Reasoning

The court compared the prayers in the withdrawn application and the later application and found they were, save for semantics and one omitted prayer for witness statements, the same. The notice of withdrawal took effect, the first application ceased to exist, and reviewing the dismissal would effectively amount to the court hearing an appeal against its own ruling. The principles for review under section 80 of the Civil Procedure Act were therefore not satisfied, and the motion was dismissed.

p. 6

Legal principles established

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  • A party's right to withdraw a matter before the court cannot be taken away; the court's only role is to deal with costs
  • A withdrawn application ceases to exist and the court cannot review its earlier orders to revive what was withdrawn where the review principles are not met

Court orders

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  1. 1.The application dated 30th July 2024 is dismissed as it lacks merits
  2. 2.Costs will be in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 25 Rule 1
  • Civil Procedure ActSection 80
  • Civil Procedure ActSection 27
  • Civil Procedure ActSection 7
  • Civil Procedure Act (Chapter 21, Laws of Kenya)Section 1B
  • Civil Procedure RulesOrder 21 Rule 1
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48

Cases cited (7)

  • Grace Akinyi V Gladys Kemunto Obiri & another
    [2016] eKLR
  • National Bank of Kenya Limited V Ndungu Njau
    [1997] KECA 71 (KLR)
  • Smt. Raisa Sultana Begam and Ors. vs Abdul Qadir and Ors.
    AIR1966ALL318
  • Charles Kiptarbei Birech V Paul Waweru Mbugua & another
    [2021] eKLR
  • Cecilia Karuru Ngayu V Barclays Bank of Kenya & another
    (2016) eKLR
  • Salat V Independent Electoral and Boundaries Commission & 7 others
    [2014] KESC 12 (KLR)
  • Independent Electoral & Boundaries Commission v Maina Kiai & 5 Others
    (2017) eKLR
Jurisdiction invoked
Original employment jurisdiction of the Employment and Labour Relations Court; review under section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules (not expressly cited in the judgment, which applies section 80 as invoked by the applicant)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Mohamed v Judicial Service Commission (Employment and Labour Relations Cause E645 of 2022) [2025] KEELRC 99 (KLR)", Case Analysis (2025). Not stated in judgment (Claimant/Applicant's Notice of Motion dated 30th July 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/99/eng@2025-01-24

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.