https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1969

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT & LABOUR RELATIONS COURT** **AT NAIROBI** **ELRC CAUSE NO. E428 OF 2025** ***(Before Hon. Lady Justice Hellen Wasilwa, J)*** **STANLEY KUIRA KIMANI........…………………...............CLAIMANT** **VS** **RUIRU JUJA WATER AND SEWERAGE** **COMPANY LIMITED...…………………………………….RESPONDENT** **RULING** 1. The Respondent/ Applicant filed a Notice of Motion application dated 23rd March 2026 seeking orders: - 2. *THAT this Honourable Court be pleased to review and/or vary its Ruling delivered on 11th December 2025 to the extent that it failed to determine the Respondent’s Notice of Motion application dated 19th June 2025.* 3. *THAT this Honourable Court be pleased to determine the Respondent’s said application dated 19th June 2025, or in the alternative, issue appropriate directions for its hearing and determination.* 4. *THAT this Honourable Court be pleased to find that the issues raised in the Claimant’s application have been overtaken by events, and consequently vacate the stay orders previously issued restraining the Respondent’s disciplinary proceedings.* 5. *THAT costs of this application be provided for.* **Respondent/Applicant’s Case** 1. The Respondent/Applicant avers that on 19th June 2025, it filed a substantive application seeking review of the Court’s earlier orders on the ground that the Claimant’s application had been overtaken by events, as it had addressed the grievances raised therein by reconstituting the disciplinary committee and setting aside the earlier disciplinary proceedings. 2. The Respondent/Applicant states that the said application was admitted by the Court on 20th June 2025 and directions were subsequently issued on 23rd June 2025 and 21st October 2025; and upon parties filing their respective submissions, the application was reserved for ruling on 11th December 2025. 3. The Respondent/Applicant contends that despite the foregoing, the Court, in its ruling delivered on 11th December 2025, neither considered nor determined the application dated 19th June 2025 and made no reference whatsoever to the same. 4. It is the Respondent/ Applicant’s case that the failure by the Court to determine a properly filed, argued and pending application constitutes an error apparent on the face of the record and therefore warrants review of the impugned orders. 5. The Respondent/Applicant asserts that the omission has occasioned substantial prejudice to the Respondent as the subsisting stay orders continue to impede its lawful administrative and disciplinary functions. 6. The Respondent/Applicant avers that it is in the interests of justice, fairness and finality of litigation that all issues properly placed before the Court be conclusively determined. 7. It is the Respondent/Applicant’s case that the present application has been brought without unreasonable delay and maintains that this Court has inherent jurisdiction and powers to review its orders where there exists an error apparent on the face of the record. **Claimant/Respondent’s Case** 1. In opposition to the application, the Claimant/Respondent filed a Grounds of Opposition dated 2nd April 2026 on the following grounds: 2. *THAT it is incompetent, frivolous, vexatious and otherwise an abuse of the Court process.* 3. *THAT the Application is made in bad faith.* 4. *THAT there is no error apparent on the face of the ruling delivered on 11th December 2025 that has been disclosed in the Application.* 5. *THAT there is no discovery of new and important matter.* 6. *THAT Application is res judicata.* 7. *THAT the Application dated 19th June 2025 has already been over taken by events on account of the Respondent’s indolence and lack of interest to bring it to the attention of Court.* 8. *THAT Applicant’s multiplicity of applications by different law firms purporting to represent the Respondent are intended to delay and derail the hearing and final determination of the claim.* **Respondent/Applicant’s Submissions** 1. The Respondent/Applicant submitted on two issues: whether the Applicant has established sufficient grounds for review on account of an error apparent on the face of the record; and whether the present Application is barred by the doctrine of res judicata. 2. On the first issue, the Respondent/Applicant submitted that under Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules, the Court has power to review its decision where there is a mistake or error apparent on the face of the record or for any other sufficient reason. 3. It submitted that Order 45 Rule 1(b) allows a party aggrieved by a decree or order to apply for review on account of an error apparent on the face of the record, provided the application is brought without unreasonable delay. 4. Reliance was placed on [***National Bank Of Kenya Limited Vs Ndungu Njau [1997] eKLR***](https://new.kenyalaw.org/akn/ke/judgment/keca/1997/389/eng%401997-05-27), the Court of Appeal held that: *“A review may be granted whenever the court considers that it is necessary to correct an apparent error or omission on the part of the court. The error or omission must be self evident and should not require an elaborate argument to be established.”* They further relied on ***Multichoice (Kenya) Ltd v Wananchi Group (Kenya) Limited*** and ***Communications Commission of Kenya & Kenya Broadcasting Corporation [2020] KECA 633 (KLR)***. 5. The Respondent/Applicant submitted that it filed an Application dated 19th June 2025 seeking to vacate interim orders on the basis that the circumstances giving rise to those orders had been overtaken by events, arising from the fact that the initial complaint, being the presence of an advocate in the disciplinary committee, had been addressed by the Respondent through the reconstitution of the disciplinary panel. This was duly communicated to the Claimant who was re-invited to participate in fresh disciplinary proceedings. Therefore, the substratum of the interim orders had consequently fallen away and the Applicant moved the court to lift the same so as to proceed with the disciplinary process. 6. It further submitted that the application was admitted by the court, directed to be canvassed by written submissions, however, when the court delivered its ruling on 11th December 2025, it only addressed the application dated 3rd November 2025 and completely omitted to determine the application dated 19th June 2025. 7. The Respondent/Applicant submitted that this omission is not a matter of interpretation or disagreement with the court's reasoning but a clear and self-evident procedural lapse, in that the court neither dismissed nor allowed the application nor made any reference whatsoever to its merits. 8. It is the Respondent/Applicant’s submission that such an omission goes to the very heart of the judicial function, which is to determine all issues properly placed before the court, and relied on ***Nyamogo and Nyamogo v Kogo [2001] EA 174:*** *“An error apparent on the face of the record includes an omission which is manifest and can be seen without extensive reasoning.”* 9. It further submitted that the failure to determine a duly filed, heard and reserved application constitutes an error apparent on the face of the record, as it is plainly visible from the proceedings and the ruling itself. 10. The Respondent/Applicant submitted that the court in ***Odd Jobs v Mubia [1970] EA 476***, as cited in [***Wanjohi v Mukabi [2021] KECA 476 (KLR)***](https://new.kenyalaw.org/akn/ke/judgment/keca/2021/476/eng%402021-07-09), emphasised that a court must pronounce itself on all issues placed before it, failure to do so rendering the decision incomplete by holding: *"It is the duty of the court to frame issues as may be necessary for determining the matters in controversy between the parties….”* 11. It was accordingly submitted that the present application does not invite the court to sit on appeal over its own decision but rather to complete its adjudicative mandate by determining an application that was inadvertently left unresolved. 12. On the second issue, the Respondent/Applicant submitted that the doctrine of res judicata, codified under Section 7 of the Civil Procedure Act, applies only where a matter in issue has been directly and substantially in issue in a former suit, between the same parties, and has been heard and finally determined by a competent court. 13. It was further submitted that for res judicata to apply, the elements were set out in [***Independent Electoral & Boundaries Commission v Maina Kiai & 5 Others [2017] eKLR***](https://new.kenyalaw.org/akn/ke/judgment/keca/2017/477/eng%402017-06-23), where the Court of Appeal stated that: *“The rule or doctrine of res judicata serves the salutary aim of bringing finality to litigation and affords parties closure and respite from the spectre of being vexed, haunted and hounded by issues and suits that have already been determined by a competent court……”* 14. The Respondent/Applicant submitted that the Claimant's argument that the application is res judicata is misplaced because the present application seeks a review of the ruling delivered on 11th December 2025 on the ground that the Court failed to determine the application dated 19th June 2025. It argued that there has been no previous application for review of the ruling and the issue before the Court has never been heard and determined. 15. The Respondent/Applicant further submitted that the application dated 19th June 2025 was itself not determined in the impugned ruling, therefore, there has been no final determination of that application. It maintained that the doctrine of res judicata cannot apply to matters that have not been adjudicated upon. 16. It is the Respondent/Applicant’s submission that to uphold the objection of res judicata would lead to an absurd result where a party is denied a hearing on an application that the Court itself did not determine. It contended that the doctrine of res judicata is meant to prevent re-litigation and not to sanction procedural omissions or shut out parties from being heard. 17. It was submitted that the application is not an appeal in disguise nor an attempt to reopen matters already determined but a proper invocation of the Court's review jurisdiction to correct a manifest omission. 18. I have examined all the averments and submissions of the parties herein. It is noteworthy that the applicants filed their application dated 19th June 2025. Directions were given by court on the application and vide the direction of court on 21/10/25 a ruling date was reserved for 11/12/25. 19. Vide a ruling of 11/12/25, the court addressed itself to the application dated 21/10/25. It is therefore apparent that the ruling for the application dated 19/6/25 has not been delivered. However, by this court’s directions on 11/12/25 this court noted the existence of the said application noting that the union had been deregistered and could not therefore proceed to prosecute this cause for lack of *locus standi*. In the said ruling of court, the court stayed any further hearing of the cause to allow the grievant to consider legal options available to him and move this court appropriately. 20. The grievant has now moved this court asking it to deliver a ruling based on the same parties that J. Radido (as he then was) determined had been deregistered and so lacked *locus.* 21. The position of this court is that the pleadings as currently set cannot elicit determination of the claim given the sentiments of the court in the ruling on 11/12/26. 22. I therefore find the application lacks merit and I dismiss it accordingly the same having been overtaken by events. There shall be no order of costs. **Dated, Signed and Delivered virtually at Nairobi this 9th Day of July 2026.** **HELLEN WASILWA** **JUDGE**