Mutisya v Machakos County Assembly Service Board (Cause 4 of 2018) [2025] KEELRC 1845 (KLR)
The bottom line
#Kenya's Employment Court refused to revive a dismissed appeal application, ruling that consent orders bind parties and review requires due diligence.
What this practically means
#Executive summary
#Key legal issues
#Whether the consent withdrawal of a prior similar application barred the review application
Yes - the parties were bound by the consent order of 27.10.2024 marking the application dated 24.07.2023 withdrawn, rendering the court functus officio and the matter settled.
The court found that a similar application dated 24.07.2023 was withdrawn on 27.10.2024 by consent with no orders on costs. Parties are bound by that consent; the court became functus officio. The consent order could only be set aside by the parties' own agreement, none of which was shown to exist.
Whether the alleged new evidence - non-service of notice of the judgment on the applicant's former counsel - justified review
No. The applicant failed to show due diligence; it knew of the dismissal on 08.03.2024 and could have raised the lack of notice then.
The affidavit of the applicant's former counsel Caroline Kamende showed the judgment was delivered without notice. However, on the timelines, nothing showed that with due diligence the applicant could not have informed the court at the time of the 08.03.2024 dismissal that the judgment had been made without notice. There was thus no well-established reason for review.
Whether the withdrawal of the notice of appeal was formally effective
No - there was no demonstrated formal withdrawal because the registrar had not formally marked the notice as withdrawn.
The applicant asserted it had waived its right of appeal by withdrawing its notice of appeal dated 12.03.2024. However, per the claimants' submissions, the registrar had not formally marked the notice as withdrawn, so no formal withdrawal was demonstrated under rule 83 of the Court of Appeal Rules.
Whether the applicant invoked the correct procedural framework for the review
No - the applicant failed to invoke the relevant provisions of the Employment and Labour Relations Court (Procedure) Rules, which weighed against the application.
The application was anchored on the Civil Procedure Act and Civil Procedure Rules, but the matter fell under the ELRC (Procedure) Rules 2016. The claimants argued non-compliance with Rule 33(1). The court accepted that failure to invoke the correct provisions operated as an impetus to dismissal.
Legal principles established
#- Parties are bound by a consent order recording withdrawal of an application; the court becomes functus officio and the consent can only be set aside by the parties' own agreement, which must be shown to exist.
- A party seeking review must demonstrate that with due diligence it could not have discovered the alleged new or omitted matter earlier.
- A first-instance court cannot sit on appeal upon its own decision.
Court orders
#- 1.The application dated 20.03.2025 is dismissed with costs
- 2.The Deputy Registrar to return the case file to the Machakos Sub-registry forthwith
- Jurisdiction invoked
- Sections 1A, 1B and 3A of the Civil Procedure Act and Order 45 Rules 1, 2 and 3 of the Civil Procedure Rules 2010 (review jurisdiction); the court noted the applicant 'failed to invoke the relevant provisions of the Employment and Labour Relations Court (Procedure) Rules'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mutisya v Machakos County Assembly Service Board (Cause 4 of 2018) [2025] KEELRC 1845 (KLR)", Case Analysis (2025). Not stated in the extract of the judgment provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1845/eng@2025-06-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.