Shangcheng Kenya Apparel EPZ v Kimondiu

3. Following delivery of the judgment in MCELRC Cause No. 164 of 2024, the Applicant elected to pursue review proceedings before the trial court on the basis of newly discovered evidence which the Applicant believed would materially aect the ndings of the Court. 4. During the pendency of the review proceedings and related stay applications, the Applicant lodged an appeal in the High Court. The Applicant and its counsel genuinely but mistakenly proceeded on the belief that the appeal already on record related to the ruling arising from the review proceedings. 5. It was only upon delivery of the High Court judgment that the Applicant became aware that the appeal on record had in fact been lodged against the substantive judgment of the subordinate court and not against the ruling delivered on 19th December 2025 dismissing the application for review. 6. The failure to le an appeal against the ruling of 19th December 2025 within the prescribed period was therefore occasioned by an inadvertent and excusable mistake of counsel and not by any lack of diligence on the part of the Applicant. Immediately upon discovery of the said error, the Applicant moved with promptitude to seek leave of this Honourable Court to le the intended appeal out of time. 7. The Applicant has at all material times demonstrated a consistent intention to challenge the impugned decision and has continuously pursued available legal remedies. 8. The Applicant has throughout acted in good faith and in compliance with the directions of the Court, including furnishing security by way of deposit of the decretal sum during the pendency of the stay proceedings. 9. Unless the decretal sum is preserved pending determination of this Application and the intended appeal, the Applicant risks suering substantial prejudice and the intended appeal may be rendered nugatory. 10. The interests of justice require that the status quo regarding the deposited decretal sum be maintained pending the determination of the Applicant's right of appeal. 11. The intended appeal raises arguable points of law and fact with reasonable prospects of success. 12. The Respondent will not suer any prejudice incapable of compensation by an award of costs if the orders sought herein are granted. 13. It is in the interests of justice that the Applicant be aorded an opportunity to ventilate the intended appeal on its merits. 14. Unless the orders sought are granted, the Applicant stands to suer substantial prejudice and risks being shut out from exercising its statutory right of appeal. Response 15. The respondent led a response by way of adavit sworn on dated 15th July 2026, which the court found was improper as it included case law submissions. Adavits ought to be limited to facts. Nevertheless, the court is not to decide cases on technicalities (section 20 of the Employment and Labour Relations Court Act). 16. The court nds the application is opposed for being incompetent. The respondent’s deponent states as followsThat it is unfortunate that the Applicant is dishonest and ingenuine and even went as far as swearing an Adavit while deponing lies; the Applicant in their Supporting Adavit https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2548/eng@2026-09-18 2

page 2 of 5

sworn on 17th June, 2026 claims in paragraph 7 that "the Respondent Company and its Advocates genuinely but mistakenly proceeded on the belief that the appeal already on record related to the ruling arising from the review proceedings" yet at the time of ling the appeal, Machakos ELRCA NO. E047 OF 2025, the application for review had not been determined. The appeal Machakos ELRCA NO. E047 OF 2025 was registered and led before the Honourable Court on 2nd October, 2025 yet the ruling in the application for review in MAVOKO ELRC NO.E164 OF 2024 was delivered on 19th December, 2025. It is therefore not possible that the Applicant was appealing against a decision which had not yet been pronounced and/ or delivered (Annexed herein and marked "LNK-1" is a copy of the Applicant's Memorandum of Appeal in Маснакos ELRCA NO. E047 OF 2025 and marked “LNK-2” is a copy of the ruling in the application for review in Mavoko ELRC NO.E164 OF 2024 delivered on 19th December, 2025). That in addition to the foregoing, the Applicant states in paragraph 9 of their Supporting Adavit sworn on 17th June, 2026 "that following the dismissal of the review application, the Respondent Company continued to prosecute the appeal already on record under the mistaken belief that the same related to the ruling dismissing the review application". The same is dishonest as the Applicant was well aware that they had led the appeal on 2nd October, 2025 way before the ruling in the review was delivered on 19th December, 2025; the appeal could therefore NOT be against the review decision of 19th December, 2025 (Annexed herein and marked "LNK-1" is a copy of the Applicant's Memorandum of Appeal in Machakos ELRCA NO. E047 OF 2025 and marked "LNK-2" is a copy of the ruling in the application for review in Mavoko ELRC NO.E164 OF 2024 delivered on 19th December, 2025). That in addition to the same, the Applicant cannot feign ignorance to their own pleadings and specically, their Memorandum of Appeal dated 2nd October, 2025 in Machakos ELRCA NO. E047 OF 2025; parties are strictly bound by their pleadings. The Appellant clearly states in the said Memorandum of Appeal dated 2nd October, 2025 that; "being dissatised with the Judgment and Decree of the Honourable Trial Magistrate Honourable Derrick Kuto (Mr.), delivered on 4th September, 2025 in Mavoko ELRC No. E164 of 2024 appealed against the said Judgment and subsequent orders" In essence, the application is challenged on the basis of incompetence. Decision. 17. Only the respondent led written submissions Whether the application is merited/competent. 18. The time of ling an appeal from a magistrate's decision to this court is 30 days as provided in Rule 12 of the Employment and Labour Relations Court(procedural) Rules of 2024. The applicant is outside the 30 days. 19. The court has discretion to extend the time for ling an appeal under Rule 18 of the Court procedural Rules consistent with the Supreme court decision in Salat v Independent Electoral and Boundaries Commission & 7 others [2014] KESC 12 (KLR) – Where one intended to le an appeal out of time and sought an extension of time, the much he could do was to annex the draft intended petition of appeal for the court’s perusal when making his application for extension of time; and not to le an appeal and seek to legalize it.’ https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2548/eng@2026-09-18 3

page 3 of 5

20. In the instant case, it was undisputed that the impugned ruling was on review of the decision. The applicant relied on the following pertinent grounds – During the pendency of the review proceedings and related stay applications, the Applicant lodged an appeal in the High Court. The Applicant and its counsel genuinely but mistakenly proceeded on the belief that the appeal already on record related to the ruling arising from the review proceedings. It was only upon delivery of the High Court judgment that the Applicant became aware that the appeal on record had in fact been lodged against the substantive judgment of the subordinate court and not against the ruling delivered on 19th December 2025 dismissing the application for review. The failure to le an appeal against the ruling of 19th December 2025 within the prescribed period was therefore occasioned by an inadvertent and excusable mistake of counsel and not by any lack of diligence on the part of the Applicant.’ 21. An appeal on the merits of the decision of the lower court was before the court, and a judgment was issued on the merits of the entire lower court judgment. The applicant is not candid with the court as they did not attach the appellate judgment of the High Court. However, the applicant admits the foregoing in their adavit in support of the application. Can a party who led an appeal and judgment delivered subsequently seek to appeal against a review decision on the same case? The ELRC (procedural) 2024 rules state74. Review (1) A person who is aggrieved by a decree or an order from which an appeal is allowed but from which no appeal is preferred or from which no appeal is allowed, may within reasonable time, apply for a review of the judgment or ruling—(a)if there is discovery of a new and important matter or evidence which, despite the exercise of due diligence, was not within the knowledge of that person or could not be produced by that person at the time when the decree was passed or the order made;(b)on account of some mistake or error apparent on the face of the record;(c)if the judgment or ruling requires clarication; or(d)for any other sucient reason.’ 22. I am of the considered opinion that the applicant, having approached the court vide an appeal on the judgment of the lower court while its application for review was pending before the trial court, and the High Court having rendered a judgment on the appeal, the court is now functus ocio on the cause. The court has no jurisdiction to re-open the case. It is a truism that litigation must come to an end. It has come to end for the applicant. The instant application is held as incompetent and as an abuse of court process. 23. The application is dismissed with costs to the respondent. 24. It is so ordered. DATED, SIGNED, AND DELIVERED VIRTUALLY AT MACHAKOS THIS 18TH DAY OF SEPTEMBER, 2026. JEMIMAH KELI JUDGE. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2548/eng@2026-09-18 4

page 4 of 5

In The Presence Of: Court Assistant: Otieno Applicant – Wangari h/b Kiama Respondent – Mugo https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2548/eng@2026-09-18 5

page 5 of 5