China Wu Yi Company Ltd v Langat

2. 6. In the alternative, and without prejudice to the foregoing, this Honourable Court be pleased to order that no release of the decretal sum shall be eected until the Appellant’s application for reinstatement and stay in Narok HCCA/E016/2025 is heard and determined. 7. The costs of this Application be in the cause. The application is brought under Articles 48, 50(1), 159(2)(d) and 162(2)(a) of the Constitution of Kenya, Sections 1A, 1B, 3A and 80 of the Civil Procedure Act, Order 45 Rule 1, Order 51 Rule 1 of the Civil Procedure Rules, Rule 33 of the Employment and Labour Relations Court (Procedure) Rules, 2024, and all other enabling provisions of the law. Appellant’s supporting adavit 3. The application is supported by the adavit of Joe Wairumbi Thuo, the Appellant/Applicant’s advocate, dated even date as the application. 4. The Appellant/Applicant avers that having been aggrieved by the decree in Narok CMCC No. 130 of 2018, initially lodged Narok HCCA/E016/2025 before the High Court, which granted interim stay orders conditional upon deposit of the decretal sum. 5. Upon realizing the matter concerned a workplace injury, the Appellant avers that it withdrew the High Court appeal and led ELRC Appeal No. E030 of 2025 at Nakuru, where interim stay was again granted subject to deposit of Kshs. 1,193,416/= in a joint account. The Appellant/Applicant complied fully, but the ELRC later ruled it lacked jurisdiction, directing the matter back to the civil appellate forum. 6. Dissatised, the Appellant avers that it sought review, which was dismissed on 6th February 2026, rearming lack of jurisdiction. Consequently, the Appellant returned to the High Court at Narok, seeking reinstatement of the withdrawn appeal, and on 3rd March 2026, temporary stay orders were granted, conrming a live process before the proper forum. 7. The Appellant avers that it now challenges the subsequent order of 23rd March 2026, which directed release of the deposited decretal sum to the Respondent. 8. The Appellant/Applicant argues that such release would deprive him of the very security deposited in obedience to court orders, render the reinstated appeal nugatory, and prejudice his right to be heard on the merits, particularly given the decree arose from interlocutory judgment. 9. The Appellant/Applicant further contends that the Respondent will suer no prejudice if the funds remain preserved, as costs or interest would adequately compensate. The application is therefore brought not to delay enjoyment of judgment but to safeguard the appellate process. 10. In the interests of substantive justice, the Appellant/Applicant prays that the order of 23rd March 2026 be reviewed and the decretal sum preserved pending determination of Narok HCCA/E016/2025 or until further orders of the competent appellate court. Respondent’s grounds of opposition 11. The Respondent opposed the application vide grounds of opposition dated 2nd May 2026. 12. The Respondent argues that the application is incompetent, led by a contemnor who disobeyed the court’s order of 23rd March 2026 to release the decretal sum. He maintains that the court is functus https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2219/eng@2026-07-30 2

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ocio after its ruling of 26th September 2025 declaring lack of jurisdiction, and cannot supervise proceedings before the High Court in Narok. 13. The Respondent further contends that no order for deposit of security has been issued by the High Court, making continued retention of the decretal sum unjustied. He asserts that the application is led in bad faith to delay execution, does not meet the legal threshold for review since no new evidence, error apparent, or sucient reason has been shown, and that any alleged misapprehension of law or fact can only be corrected on appeal, not review. 14. Finally, the Respondent submits that the application is an afterthought aimed at avoiding payment, that no appeal lies before the ELRC, and therefore the application should be dismissed with costs. 15. Parties canvassed the application by way of written submissions. Appellant/Applicant’s submissions 16. The Appellant/Applicant submitted that the application for review is properly anchored on “sucient reason”, arising from the procedural history of the matter. It is undisputed that the Applicant rst led Narok HCCA No. E016 of 2025, later withdrew it under a bona de belief that jurisdiction lay with the ELRC, and upon this Court’s nding that jurisdiction lay with the High Court, duly returned to the High Court where reinstatement proceedings and interim orders are now subsisting. The Appellant/Applicant claries that it does not seek to reopen the jurisdictional ruling but only to safeguard funds deposited pursuant to this court’s orders. 17. On the Respondent’s claim that the Court is functus ocio, the Appellant/Applicant contended that the Court retains residual authority over monies deposited under its own directions, and regulating their preservation does not amount to exercising appellate jurisdiction. Allegations of contempt are dismissed as unfounded, since no contempt proceedings or ndings exist, and the Appellant/ Applicant has complied by depositing the full decretal sum. The assertion of abuse of process is equally rejected, as the Appellant/Applicant has consistently pursued remedies before the proper forum and secured the decretal amount, which continues to earn interest. 18. The Appellant/Applicant emphasizes that premature release of the funds would render the High Court proceedings nugatory. Reliance is placed on Butt v Rent Restriction Tribunal [1979] KECA 22 (KLR), which held that stay orders exist to ensure appeals are not rendered nugatory, and Kenya Shell Limited v Benjamin Karuga Kibiru & another [1986] KECA 94 (KLR), which underscored that substantial loss is the cornerstone of preservation applications. 19. The Appellant/Applicant further cites RWW V EKW [2019] KEHC 6523 (KLR) and Amir Suleiman V Amboseli Resort Limited [2004] KEHC 2624 (KLR), arming that preservation orders balance competing rights and that courts should adopt the course carrying the lower risk of injustice. 20. In conclusion, the Appellant/Applicant argues that sucient reason has been demonstrated to warrant review of the order of 23rd March 2026, and prays that the decretal sum remain preserved pending determination of Narok HCCA No. E016 of 2025 or until further orders of the competent appellate court. 21. At the writing of the ruling, the Respondent did not le their respective submissions. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2219/eng@2026-07-30 3

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Analysis and determination 22. The court has considered the application, supporting adavit, grounds of opposition and rival submissions; the issue for determination is whether there are valid reasons to justify review of the court’s ruling of 23rd March 2026. 23. In Rose Jebor Kipngok v Kiplagat Kotut [2019] KECA 236 (KLR) the Court of Appeal stated as follows: “ In penultimate, one of the prayers sought is an order for stay of execution and implementation of the judgment of this Court delivered on 7th March 2019. We have considered the prayer and we state this Court is functus ocio after delivery of judgment. We re-arm the decision of this Court in Dickson Muricho Muriuki vs.Timothy Kagondu Muriuki & 6 Others [2013] eKLR where it was held: “ On the issue of whether this Court has jurisdiction to stay execution of its orders or stay any proceedings after the nal delivery of its judgment and pending the hearing and determination of an intended appeal to the Supreme Court, we are of the view that once this Court has pronounced the nal judgment, it is functus ocio and must down its tools. In the absence of statutory authority, the principle of functus ocio prevents this Court from re-opening a case where a nal decision and judgment has been made…... It is our considered view that subject to the Court of Appeal’s jurisdiction to certify matters of appeal to the Supreme Court, the proper forum to seek and apply for stay of execution after judgment by the Court of Appeal is the Supreme Court.” Persuaded by the sound reasoning in Dickson Muricho Muriuki vs. Timothy Kagondu Muruiki & 6 others (supra), the applicant has not given us good reasons to depart from it. If there are new points of law or circumstances that arise after judgment, this Court is functus ocio and the justiciable forum to consider the merits or otherwise of these new circumstances must shift from this Court to the Supreme Court. Accordingly, we decline to grant stay orders and we re-arm that this Court is functus ocio after pronouncement and delivery of its judgment. Any application for stay of a judgment of this Court should be made before the Supreme Court.” 24. In Samaki Industries (K) Ltd v Kenya Ports Authority [2025] KECA 783 (KLR) the Court of Appeal stated as follows: “ It is also instructive that this Court became functus ocio upon pronouncement of the impugned judgment. The Supreme Court of Kenya in Raila Odinga & 2 Others vs. Independent Electoral & Boundaries Commission & 3 Others [2013] eKLR cited with approval an excerpt from an article by Daniel Malan Pretorius entitled, “The Origins of the Functus Ocio Doctrine, with Special Reference to its Application in Administrative Law” (2005) 122 SALJ 832, which reads: “ The functus ocio doctrine is one of the mechanisms by means of which the law gives expression to the principle of nality. According to this doctrine, a person https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2219/eng@2026-07-30 4

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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 superior body or functionary) nal and conclusive. Such a decision cannot be reviewed or varied by the decision maker.” The doctrine of functus ocio was also considered by this Court in Telkom Kenya limited v John Ochanda (suing on his own behalf and on behalf of 996 former employees of Telkom Kenya Limited) [2014] eKLR where the court held that “ Functus ocio is an enduring principle of law that prevents the re-opening of a matter before a court that rendered the nal decision thereon.” 25. In Samaki Industries (K) Ltd v Kenya Ports Authority(supra) the Court of Appeal held that this Court is functus ocio and has no jurisdiction to hear and determine the instant application. 26. In this instant case, the Appellant/Applicant challenges the order of 23rd March 2026 directing release of the deposited decretal sum to the Respondent, contending that such release would deprive him of the security placed in obedience to court orders, render the reinstated appeal nugatory, and prejudice his right to be heard on the merits, particularly as the decree arose from interlocutory judgment. He maintains that the Respondent would suer no prejudice if the funds remain preserved, since costs or interest would adequately compensate, and stresses that the application is intended to safeguard the appellate process rather than delay enjoyment of judgment. Conversely, the Respondent argues that the application is incompetent, led by a contemnor who disobeyed the court’s order of 23rd March 2026, and that the court is functus ocio following its ruling of 26th September 2025 on jurisdiction. He further submits that no order for deposit of security has been issued by the High Court, making retention of the decretal sum unjustied, and asserts that the application is led in bad faith to delay execution, fails to meet the threshold for review, and that any alleged misapprehension of law or fact can only be corrected on appeal. The Respondent concludes that the application is an afterthought aimed at avoiding payment, that no appeal lies before the ELRC, and therefore it should be dismissed with costs. 27. The court has considered the history of this case and the pleadings of the respective parties as well as their submissions, cited case laws and applicable laws. The gist of this matter is that the Appellant deposited Kshs.1,193,416 as security as per court order and the same was placed in a joint account held between the Appellants and the Respondents advocates. 28. In the meantime, this court had made a ruling that it had no jurisdiction to deal with this case as per its ruling issued on 26th September 2025 and 6th February 2026 respectively. The Appellant says he obtained an interim stay of execution in Narok High Court dated 3rd March 2026 pending inter parties hearing. 29. Considering this is a new development after this court ordered release of the money held as security the court is persuaded to review its order and order the funds to remain as security in the joint account of the Respondent’s and the Appellant’s Counsels. 30. In the case of NATIONAL BANK OF KENYA LTD -VS- NDUNGU NJAU (1997) eKLR the Court of Appeal held that a court can review its decision where there is- https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2219/eng@2026-07-30 5

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31. a. A discovery of new and important evidence that could not with due diligence not have been produced earlier. b. An error apparent on the face of record. c. Any other sucient reason. The court is of the view that now since there is a pending hearing of the case in in the High court with similar jurisdiction and since the funds are still held in the joint accounts of the respective Counsels, there is justication and legal grounds to grant review and revise its orders of 23rd March 2026. The court had ordered the funds to be released unless other orders of Appellant Court are issued. There are orders of the High Court nevertheless, and they are binding unless otherwise set aside. In that case, the sums deposited between the respective Parties’ Counsels accounts to be retained therein pending the determination of the High Court hearing. The Respondent if he wins the case in Narok will still have his money and so there will be no prejudice he will suer. The application dated 22nd April 2026 is granted. 32. Costs will be in the cause. Orders accordingly. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAKURU THIS 30TH DAY OF JULY, 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 objective which is to facilitate just, expeditious, proportionate and aordable resolution of civil disputes. A signed copy will be availed to each party upon payment of Court fees. ANNA NGIBUINI MWAURE JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2219/eng@2026-07-30 6

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