https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1022

Ochieng v Awanad Enterprises Limited & 2 others (Civil Appeal (Application) E054 of 2021) [2026] KECA 1022 (KLR) (29 May 2026) (Ruling) Neutral citation: [2026] KECA 1022 (KLR) Republic of Kenya In the Court of Appeal at Mombasa Civil Appeal (Application) E054 of 2021 AK Murgor, KI Laibuta & GW Ngenye-Macharia, JJA May 29, 2026 Between Laban Owino Ochieng Applicant and Awanad Enterprises Limited 1st Respondent Pili Management Consultants Limited 2nd Respondent Hezron Awiti Bollo 3rd Respondent (An application for certification that a matter involving constitutional interpretation and matters of general public importance is involved pursuant to Article 163 (4) (b) of the Constitution, Rule 40 of the Court of Appeal Rules and all enabling provisions of the law in Mombasa ELRC Cause No. 22 of 2019 Cause 22 of 2019 ) Ruling 1.By a Notice of Motion dated 16th May 2025, the applicant, Laban Owino Ochieng, seeks:i.Spent;ii.That this Court be pleased to certify that the intended appeal to the Supreme Court raises matters of constitutional interpretation and application within the meaning of Article 163 (4) (b) of the Constitution.iii.That this Court be pleased to certify that the intended appeal to the Supreme Court raises matters of general public importance within the meaning of Article 163 (4) (b) of the Constitution.iv.That this Court be pleased to issue any further orders and other reliefs as it may deem just and expedient to grant.v.That costs and incidental to his application be in the cause. 2.The application is based on the grounds on its face and a supporting affidavit of the applicant deposed on even date. As a precis, the applicant was employed by Awanad Enterprises Limited, the 1st respondent, under a Contract of Employment which listed Pili Management Limited (the 2nd respondent) and Hezron Awiti Bolo, the 3rd respondent as employers under the HABO Group of Companies, as an Engineer/General Manager with effect from 15th August 2011. The applicant’s remuneration package included a fixed salary and a commission of 3% from profits made in every successful project. He was aggrieved that he was not paid Kshs.27,605,000, being the amount of the agreed 3% commission after a successful project whose value was Kshs.793,000,000 from 2011 to 2017. 3.The disputed facts precipitated the applicant to file claims before courts. The first suit filed was Milimani Commercial Court Civil Suit No. 429 of 2017, which was struck out for want of jurisdiction. The applicant then filed Mombasa Chief Magistrate’s Court Cause No. 24 of 2019 but, since it was irregularly filed in the Chief Magistrate’s Court which lacked pecuniary jurisdiction, it was administratively transferred to the Employment and Labour Relations Court (the ELRC) at Mombasa and renamed Mombasa ELRC Cause No. 22 of 2019. The said suit was struck out on jurisdictional grounds. 4.The applicant then filed a fresh suit under Mombasa ELRC Cause No. 66 of 2019, but was struck out on the ground that it was res judicata. Aggrieved, the applicant lodged an appeal to this Court, being Civil Appeal No. E054 of 2021. However, a judgement of this Court dated and delivered on 25th April 2024 struck out the appeal because the Record of Appeal was filed 85 days outside the time required under this Court’s Rules. Pushing harder in pursuit of justice, the applicant filed an application to review that judgment, but the application was dismissed on 22nd November 2024. This Court held that the delay occasioned in filing the Record of Appeal could not be cured with filing a Certificate of Delay, but by seeking leave of this Court to file the appeal out of time. 5.The applicant then again moved this Court on 28th November 2024 seeking extension of time to cure the defective Record of Appeal. The application was heard and determined by a single judge (Gatembu, JA.) and, by a ruling dated 9th May 2025, the application was dismissed. 6.The applicant is aggrieved by that decision of the Single Judge and, by the instant application, he seeks certification to appeal to the Supreme Court on the ground that the matter in issue is of general public importance within the meaning of Article 163(4) (b) of the Constitution. 7.The application is opposed by the 3rd respondent through a replying affidavit sworn on 26th June 2025. It was deposed that the applicant seeks to appeal to the Supreme Court the decision of a Single Judge who refused to grant extension of time to lodge an appeal; that the application is incompetent for the reason that the Supreme Court lacks jurisdiction to entertain decisions from this Court involving exercise of the Court’s discretion, and that the applicant’s remedy lies in filing a Reference under rule 57 of this Court’s Rules. The 3rd respondent urged that the application is not only incompetent, but is also an abuse of the court process. 8.We heard this application on 26th January 2026. Learned counsel Mr. Mackenzie holding brief for Mr. Mosi appeared for the applicant while learned counsel Mr. Amuga was present for the respondents. 9.Mr. Mackenzie highlighted the applicant’s written submissions dated 9th June 2025. In summary, it was submitted that the matters of public importance that the applicant wishes to raise before the Supreme Court were in respect to: access to justice and the right to a fair hearing; interpretation of the application of the principle of res judicata in employment matters, and its limitation when raised by the court suo motto; the implications impacted on litigants who are navigating multiple procedural barriers; and as to enforcement of constitutionally protected employment rights under Articles 41 and 43 of the Constitution. 10.The applicant relied on the following judicial authorities, namely Owners of the Motor Vessel ‘Lilian S’ vs. Caltex Oil (Kenya) Ltd (1989) KLR 1; and Kenya Ports Authority vs. Modern Holdings [EA] Limited (2017) eKLR for what constitutes a court’s jurisdiction; the Supreme Court decisions in Omar t/s Sabrin Shop vs. Highrise Commodities Limited (Civil Appeal E291 of 2023 [2024]KEHC 6177 (KLR)(Ruling); and IEBC vs. Maina Kiai & 5 others (2017) eKLR on the application of the doctrine of res judicata; Joseph Njoroge Kimondo & another vs. (A minor suing through her next friend and father JWM) (2018) eKLR, for the submission that the constitutional right of access to justice is novel within the scope of Article 50(1) of the Constitution; and the Supreme Court decisions in Peter Oduor Ngoge vs. Francis Ole Kaparo & 5 others (2012)e KLR; and Law Society of Kenya vs. Centre for Human Rights & Democracy & others (2014) eKLR on what constitutes matters of general public importance under Article 163(4)(b) of the Constitution. 11.On his part, Mr. Amuga highlighted the respondent’s submissions dated 20th January 2026. It was contended that nothing of general public importance had been demonstrated from the decision of the Single Judge, who was exercising his discretion on an application for extension of time; that the applicant wishes to appeal against a ruling arising out of interlocutory orders of which the Supreme Court has pronounced itself in Teachers Service Commission vs. Kenya National Union of Teachers & 3 Others (2015) KESC 29 (KLR) that it lacks jurisdiction to entertain appeals arising from interlocutory orders. 12.We have considered the application, the response, the respective parties’ submissions and the law. The sole issue that falls for our determination is whether the instant application, which seeks certification to appeal to the Supreme Court pursuant to Article 163(4) (b) of the Constitution is merited. 13.From the face of the application, the applicant is aggrieved by the decision of Gatembu, JA. sitting as a single Judge to consider an application for extension of time to file the appeal out of time. It is now well settled law that a party should exhaust the available and well laid down procedure(s) as provided in the Constitution, statutes and applicable Rules of procedure before seeking redress elsewhere. A person aggrieved with a decision of a single Judge of this Court is required to file a Reference to a full bench as provided for under Rule 57 as follows:57.Reference from decision of a single judge1.Where under the proviso to section 5 of the Act, any person, being dissatisfied with the decision of a single judge-a.in a criminal matter, wishes to have his or her application determined by the Court; orb.in a civil matter, wishes to have any order, direction or decision of a single judge varied, discharged or reversed by the Court, that person may apply therefor informally to the judge at the time when the decision is given or by writing to the Registrar within seven days thereafter.2.At the hearing by the court of an application previously decided by a single judge, no additional evidence shall be adduced. 14.The decision intended to be appealed against to the Supreme Court, being a Ruling by a single Judge, means that there is no substantive decision arising from this Court as to enable us determine whether it raises matters of general public importance that transcend the parties herein in order to be heard by the Supreme Court. We say so because, what the applicant is aggrieved against is the decision of Gatembu JA., and as observed above, what ought to have been filed and heard by this Court is a Reference against that decision. Depending on the outcome of the Reference, either party would be at liberty to further seek redress in the Supreme Court, but by first seeking certification under Article 163(3) of the Constitution. 15.In Steyn vs. Ruscone (2013) eKLR, a decision relied upon by the respondent, the Supreme Court rendered itself thus:“60.In the context, it is plain to us that a matter meriting certification as one of general public importance, if it one of law, requires a demonstration that a substantial point of law is involved, the determination of which has a bearing on the public interest. Such point of law, in view of the significance attributed to it, must have been raised in the Court or Courts below…” 16.It then follows that the applicant is urging this Court to grant him leave to appeal to the Supreme Court on a substantive appeal on which this Court has not been provided an opportunity to render itself. It is only after obtaining a substantive decision of the Court that the applicant can exercise his right to appeal to the Supreme Court. Mr. Mackenzie, in his oral submissions, posited that, among the issues that the applicant wishes to raise in the Supreme Court, is the interpretation of application of the principle of res judicata in employment matters. Unfortunately, that was not an issue considered by Gatembu, JA. The issue of res judicata which the applicant wishes to raise cannot certainly bypass this Court and proceed for determination before the Supreme Court. And, for this reason, we are bereft of power to address its suitability to ascend to the apex court for determination. In a nutshell, the instant application is premature and a non-starter. 17.In the end, we find and hold that the Notice of Motion dated 16th May 2025 is devoid of merit and is hereby struck out with costs to the 3rd respondent only since he is the party who opposed the application. DATED AND DELIVERED AT MOMBASA THIS 29TH DAY OF MAY, 2026.A. K. MURGOR............................JUDGE OF APPEALDR. K. I. LAIBUTA CArb, FCIArb..............................JUDGE OF APPEALG. W. NGENYE-MACHARIA...............................JUDGE OF APPEALI certify that this is the true copy of the originalSignedDEPUTY REGISTRAR