https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2072

 **REPUBLIC OF KENYA** **IN THE EMPLOYMENT *&* LABOUR RELATIONS** **COURT OF KENYA AT KISUMU** **APPEAL NO. E035 OF 2026** PORT FLORENCE COMMUNITY HOSPITAL……………...**APPELLANT** **VERSUS** MAURICE YONGO...........................................….................**RESPONDENT** *(Being an appeal from the judgment and decree of Hon. K. Cheruiyot (SPM) in Kisumu CMELRC NO. E367 OF 2024 delivered on 2nd December 2025)* **RULING** 1. The Appellant moved this Court by a Notice of Motion dated 17th April 2026 seeking the following orders: * + 1. THAT this application be certified urgent and be heard ex parte in the first instance. 2. THAT this Honourable Court be pleased to grant the Appellant/Applicant leave to file an appeal out of time against the judgment and decree delivered on 2nd December 2025. 3. THAT pending the hearing and determination of the application, this Honourable Court be pleased to grant an order for stay of execution of the judgment and decree delivered on 2nd December 2025 together with all consequential orders arising therefrom including the Garnishee Order Nisi issued on 18th March 2026. 4. THAT pending the hearing and determination of the intended appeal, this Honourable Court be pleased to grant an order for stay of execution of the judgment and decree delivered on 2nd December 2025 together with all consequential orders arising therefrom. 5. THAT the costs of the application be in the cause. 2. The application was met by a Preliminary Objection in which the Respondent contended that: * + 1. The matter is *sub judice* because the Notice of Withdrawal dated 17th April 2026 has neither been served upon the Respondent nor endorsed by the Court, with the result that the Application for Review remains pending. 2. The Applicant cannot, in law, pursue both an application for review under Order 45 of the Civil Procedure Rules and an appeal under section 75 of the Civil Procedure Act, the two remedies being mutually exclusive. Consequently, the Applicant is guilty of forum shopping and abuse of the court process. 3. The Supporting Affidavit sworn on 17th April 2026 on behalf of the Appellant, a corporate body, is fatally defective for want of authority, as the deponent failed to exhibit a Board Resolution, CR12 or a Letter of Authority authorising him to swear the affidavit on the Appellant's behalf. 4. The entire application is an abuse of the court process and ought to be struck out with costs. 3. In response to the Preliminary Objection, the Appellant filed a Further Affidavit sworn on 6th May 2026, asserting that he had authority to swear the affidavit on behalf of the Appellant as evidenced by the Letter of Authority dated 14th April 2026 annexed thereto. He maintained that the earlier failure to annex the letter was an inadvertent omission which had since been rectified. 4. The Preliminary Objection was thereafter canvassed by way of written submissions. Respondent’s Submissions 1. In support of the Preliminary Objection the Respondent identifies the following issues for determination: 2. Whether the matter is *sub judice*; 3. Whether the Applicant can sustain both an Application for Review and an Appeal simultaneously. 4. Whether the Supporting Affidavit is defective for want of authority. 5. Whether the entire Application is an abuse of court process. 6. On the issue of *sub judice*, the Respondent submits that the application for review remains pending before the Trial Court because the Notice of Withdrawal has neither been served upon him nor endorsed by the court. He therefore contends that the present proceedings offend the doctrine of *sub judice*. In support of this argument, he relies on the case of **Oreo *v* National Assembly *&* 2 others [2024] KEELRC 470 (KLR)**, where the Court observed that the institution of parallel proceedings before different courts amounts to an abuse of the court process and a waste of judicial time. 7. On whether the Applicant may pursue both review and appeal, the Respondent submits that the two remedies are mutually exclusive and that the Applicant is impermissibly engaging in forum shopping. Reliance is placed on **Serephen Nyasani Menge *v* Rispah Onsase [2018] eKLR,** where the court stated: *"Once a party has opted for a review the option of an appeal cannot at the same time be available to the party. Sub-rule (2) of Order 45 of the Civil Procedure Rules further makes the matter clearer...In my view a proper reading of section 80 of the Act and Order 45 Rules 1 and 2 makes it abundantly clear that a party cannot apply for review and appeal from the same decree or order."* 1. As for the validity of the supporting affidavit, the Respondent submits that it is fatally defective for lack of a board resolution authorizing the deponent to swear it on behalf of the Appellant. In support of his position, he cites section 37 of the Companies Act that mandates signing of documents on behalf of a company by two authorised signatories or by a director in the presence of a witness. He further relies on the definition of “authorized signatory” in the same act as a director or a company secretary. On whether the application amounts to an abuse of the court process, the Respondent submits that it is merely intended to delay the conclusion of the matter. He contends that the Appellant has demonstrated a pattern of abusing the court process by participating in taxation proceedings, thereafter filing an application for review, and, upon realising that the review application was unlikely to succeed, purporting to withdraw it before seeking leave to appeal out of time. He relies on **Ndithya *v* Total Kenya Limited [2022] KEHC 10080 (KLR)** for the proposition that a litigant cannot simultaneously invoke the remedies of review and appeal. He further submits that the Appellant has failed to satisfy the principles governing the exercise of the Court's discretion to enlarge time for filing an appeal, emphasizing that such discretion must be exercised on settled legal principles rather than sympathy, benevolence or caprice. The Respondent therefore urges the Court to uphold the Preliminary Objection and strike out the application with costs. Appellant’s Submissions 1. In opposition to the Preliminary Objection, the Applicant submits that it does not meet the threshold of a valid preliminary objection as laid down in **Mukisa Biscuits Manufacturing Co. Ltd *v* West End Distributors Ltd [1969] EA 696**, where a preliminary objection was defined as a pure point of law capable of disposing of a matter without requiring the ascertainment of contested facts. The Applicant also relies on **Peter Mungai *v* Joseph Ngaba Kuria *&* another; Leah Njeri Ndichu (Interested Party) [2022] eKLR**, where the Court reaffirmed that a preliminary objection must be founded on uncontested facts and should neither call for the exercise of judicial discretion nor require the determination of disputed factual issues. 2. In response to the contention that the appeal is barred by the pendency of the review proceedings, the Applicant submits that it initially sought review under the mistaken belief that the Respondent's resignation letter had not been placed before the trial court. Upon discovering that the document had indeed been filed and formed part of the trial court record, it elected to abandon the review proceedings in favour of an appeal. Consequently, it filed a Notice of Withdrawal dated 17th April 2026 before lodging the present application for leave to appeal out of time. 3. The Applicant further submits that the filing of a Notice of Withdrawal terminates the proceedings as of right, leaving the Court only to determine the issue of costs. In support of this proposition, it relies on **Ndovu Rock Limited *v* Weindaba *&* 3 others [2022] eKLR**, which adopted the holding in **Allah Baksh *v* Niamat Ali [1892] All WN 53**, that a party enjoys an absolute right to withdraw its suit without first obtaining the Court's permission. The Applicant therefore asserts that the withdrawal became effective upon filing and payment of the requisite fees and did not require formal endorsement by the court. It adds that, in any event, the Trial Court subsequently allowed the withdrawal when the matter was mentioned on 5th May 2026, thereby bringing the review proceedings to an end. 4. With regard to the allegation that the Supporting Affidavit was sworn without authority, the Applicant submits that the deponent had in fact been duly authorised to swear the affidavit on its behalf, but that the Letter of Authority was inadvertently omitted when the application was filed. It contends that the omission has since been cured by the filing of the Further Affidavit sworn on 6th May 2026 annexing the Letter of Authority dated 14th April 2026. On the strength of the foregoing, the Applicant urges the Court to dismiss the Preliminary Objection with costs. Disposition 1. The Respondent's preliminary objection is that the matter before me is *sub judice*. It is asserted further that the proposed appeal is incompetent as the proposed Appellant had sought review. An appeal cannot be preferred where an application for review is pending. In this case, the Appeal was filed on 17th April 2026. It filed the withdrawal on 17th April 2026. The Appellant asserts the withdrawal of the review proceedings became effective upon filing and payment of the requisite fees and did not require formal endorsement by the Court. It adds that, in any event, the Trial Court subsequently allowed the withdrawal when the matter was mentioned on 5th May 2026, thereby bringing the review proceedings to an end. 2. This Court is of the firm view that a withdrawal of the review proceedings required the endorsement of the Court and could only become effective on endorsement and not by the mere filing and payment of fees. In any event, the Appeal was filed on 17th April 2026 the same day of the withdrawal. Even consents have to be adopted by courts in order for them to take effect. There is no doubt therefore that on 17th April 2026 when this appeal was preferred, the Appellant had not withdrawn the review proceedings before the Learned Magistrate. As such, the 2 processes could not continue in tandem. The case was pending before another court and therefore the matter before me was *sub judice.* I uphold the preliminary objection and dismiss the Application for enlargement of time to file an appeal and as a consequence the appeal falls by the wayside. I will not delve into the merits or demerits of the filing of documents by the Applicant without attaching the requisite resolutions under the Companies Act. Costs of the motion shall be granted to the Respondent who has successfully challenged the Appellant's Application and intended appeal before me It is so ordered. **Dated and delivered at Kisumu this 16th day of July 2026** **Nzioki wa Makau, MCIArb.** **JUDGE**