https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1910

Tonui v Obwocha & another (Petition 28 of 2016) [2026] KEELRC 1910 (KLR) (3 July 2026) (Ruling) Neutral citation: [2026] KEELRC 1910 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Petition 28 of 2016 JW Keli, J July 3, 2026 Between Ronald Kiprotich Tonui Applicant and Robert Nyabuto Obwocha 1st Respondent Kenya Union Of Post-Primary Education Teachers 2nd Respondent Ruling 1.The applicant was the 1st respondent in the petition and subsequent to adoption of a consent in determination of the petition filed application by way of Notice of Motion dated 19th August 2025 brought under Articles 50 and 159 of the Constitution of Kenya 2010, Section Procedure Rules order 53(3), Section 45 and 46 of the Employment and Labour Court (Procedure Rules),2024 and all other enabling powers and provisions of law seeking for the following Orders:a.Spentb.The Honourable court be pleased to set aside the directions given on 2nd July, 2025.c.This Honourable Court be pleased to suspend the filing of the written submission.d.Leave be granted to the Applicant to file additional evidence in support of his case.e.The annexed further affidavit and annexures be deemed as duly filed and properly on record.f.Consequent to the grant of the prayers above the Honourable Court be pleased to issue such further directions and orders as may be necessary to give effect to the foregoing orders, and/or favour the cause of justice.g.The Costs of this application be provided for. Grounds pf the application 2.The Applicant is desirous of prosecuting their case on merit and is not seeking to delay the proceedings. 3.The Applicant has since obtained new evidence that is crucial to the fair determination of the matter. 4.In an effort to align itself with the judgment of Lady Justice Linnet Ndolo, the 2nd Respondent did, on 29th July 2025, record a consent before Honourable Justice Nduma Nderi in Petition No. E044 of 2024 – Regina Kinoti & 3 others vs KUPPET & 2 others, which consent was subsequently adopted as a judgment of the Court on 28th July 2025. 5.The said consent expressly provides as follows: "...noting the provisions of Section 31 of the Labour Relations Act as read together with Article 27 of the Constitution of Kenya, that the officials of the trade union or employer's organization shall be persons who are or have been engaged or employed in the sector for which the trade union or employer's organization is registered, the union Constitution shall retain the provision for Members of Parliament who are also KUPPET officials to hold their respective offices part-time..." 6.The binding effect of the said judgment is crucial as it establishes the legal status of Members of Parliament as full-time State Officers, which directly impacts the interpretation and application of the relevant laws and regulations in this matter. 7.Failure to recognize the binding nature of this judgment would result in inconsistent application of the law and would prejudice my rights, thereby undermining the principles of fairness and legal certainty which this Honourable Court is enjoined to uphold. 8.The 2nd Respondent's continued failure to act consistently with this consent judgment, while purporting to prosecute or sanction me under different standards, is further evidence of discrimination, double standards, and violation of my right to equal treatment under Article 27 of the Constitution. 9.The Applicant respectfully pray that this Honourable Court grants leave to introduce and admit the said new evidence. 10.The said evidence could not be produced earlier despite the Applicant's due diligence and bona fide efforts as it came to Applicant's possession on 29th July,2025, it was previously unavailable to me. 11.The filing of this additional evidence will not cause any prejudice to the Respondents and is essential for determining the real questions in controversy between the parties. 12.Failure to admit the said evidence will occasion a miscarriage of justice. 13.This Application is made bona fide and in interest of justice and it is in the best interest of justice and equity that the Applicant be allowed to reopen the case. 14.The Applicant stands to suffer substantial prejudice, injustice or irreparable harm if the matter is not reopened and heard on merit. 15.No prejudice will be suffered by the Respondents that cannot be remedied by costs or directions of the Court. 16.It is in the best interest of justice that the Applicant be allowed to present all relevant evidence. 17.The applicant filed an affidavit sworn in support of the application 21st August 2025 where he averred as follows- That have come up into possession of crucial evidence not previously available or within my knowledge. The newly discovered evidence significantly impacts the merits of this matter, thereby justifying the need for its admission and consideration by this Honourable Court. Without the consideration of this evidence, the interests of justice will be prejudiced as the full facts will not be before this Honourable Court, potentially resulting in an unfair decision. The matter is scheduled for mention to confirm filing of submissions on 14th October,2025. I have brought this Application under a Certificate of Urgency seeking to stop the 2nd Respondent from applying two different standards in relation my case which is both unfair and discriminatory. The 2nd Respondent has handled the National Chairperson and National Secretary Gender in similar circumstances with leniency, favour, resolution while unfairly disadvantaging or punishing me through a different, harsher or prejudicial approach. I verily believe that the actions of the 2nd Respondent constitute unequal treatment which not only lacks any lawful or rational justification, but also amounts to unfair discrimination. This conduct is procedurally unjust and presents a clear abuse of discretion by the 2nd Respondent. Such actions are in direct contravention of the principles of fair administrative action as enshrined under Article 47 of the Constitution, and further infringe upon my fundamental rights to equality and freedom from discrimination as guaranteed under Article 27 of the Constitution of Kenya. 18.The applicant further averred that in an effort to align itself with the judgment of Lady Justice Linnet Ndolo, the 2nd Respondent did, on 29th July 2025, record a consent before Honourable Justice Nduma Nderi in Petition No. E044 of 2024 - Regina Kinoti & 3 others vs KUPPET & 2 others, which consent was subsequently adopted as a judgment of the Court on 28th July 2025. THAT the said consent expressly provides as follows: "...noting the provisions of Section 31 of the Labour Relations Act as read together with Article 27 of the Constitution of Kenya, that the officials of the trade union or employer's organization shall be persons who are or have been engaged or employed in the sector for which the trade union or employer's organization is registered, the union Constitution shall retain the provision for Members of Parliament who are also KUPPET officials to hold their respective offices parttime..."(Annexed hereto is a copy of the consent marked "Appendix -1"). THAT the binding effect of the said judgment is crucial as it establishes the legal status of Members of Parliament as full-time State Officers, which directly impacts the interpretation and application of the relevant laws and regulations in this matter. The failure to recognize the binding nature of this judgment would result in inconsistent application of the law and would prejudice my rights, thereby undermining the principles of fairness and legal certainty which this Honourable Court is enjoined to uphold. That the 2nd Respondent's continued failure to act consistently with this consent judgment, while purporting to prosecute or sanction me under different standards, is further evidence of discrimination, double standards, and violation of my right to equal treatment under Article 27 of the Constitution. That if this new evidence is not admitted and considered, I will suffer substantial injustice and prejudice in the final determination of my case. The admission of the said evidence is necessary prevent a miscarriage of justice. That it is in the best interest of justice and fair hearing that the evidence be produced to enable the Court to arrive a just decision. That the Application is made in good faith without undue delay and in the interest of justice. If the Honourable Court does not admit my evidence there is a real and imminent risk that this Honorable Court will issue two conflicting judgements regarding the same subject matter. That such conflicting judgements will cause confusion, multiplicity proceedings and irreparable harm to me. That urgent intervention is necessary to avoid risk of conflicting rulings and to uphold the principle of finality and consistency in judicial decisions. 19.That on 2nd Septemeber,2016 Lady justice Linnet Ndolo delivered a judgement which stated that"... in my view, looking at the roles and functions assigned to Members of Parliament, they cannot be said to be part time State Officers. I therefore find that a Member of Parliament is a full time State Officer." I have been advised which advice I believe to be true that the judgement delivered by Lady Justice Linnet Ndolo is a judgment in rem having binding effect on all parties to the matter. That the National Chairman of the 2nd Respondent Hon. Jeremiah Milemba Omboko is the member of parliament for Emuhaya Constituency since 8th August ,2017 and Deputy Secretary General of United Democratic Alliance (UDA) despite the judgement delivered by Lady Justice Linnet Ndolo being in rem. (Annexed hereto is a copy of the CV of Hon. Milemba from parliament website showing his credentials marked "Appendix -2"). THAT the National Gender Secretary of the 2nd Respondent Hon. Cathrine Nanjala Wambilyanga has been the Member of parliament as Woman Representative for Bungoma county since 8th August ,2017 despite the judgement delivered by Lady Justice Linnet Ndolo being in rem. (Annexed hereto is a copy of the CV of Hon. Cathrine from parliament website showing her credentials marked "Appendix -3")THAT this continued service has persisted notwithstanding the judgment delivered by Lady Justice Linnet Ndolo, which was rendered in rem, and therefore binding upon all parties and the public at large. That the failure of the 2nd Respondent to disclose that the National Chairperson and National Gender Secretary are state officer are still state officers while they are prosecution me while leaving the National Chairperson and General Secretary Gender is discriminatory, biased, or inconsistent manner by applying different standards to me than to other similarly placed officials. That I have noted with grave concern the failure by the 2nd Respondent to disclose that both the National Chairperson and the National Gender Secretary are state officers, and have continued to hold and perform public functions in that capacity. That the 2nd Respondent, while fully aware of this fact, has proceeded to institute and sustain proceedings against me, yet no similar action has been taken against the said officials, despite their positions and circumstances being materially similar, if not identical, to mine. That this selective and inconsistent application of standards, whereby I am subjected to disciplinary or prosecutorial action while other similarly placed state officers within the same organization are shielded or ignored, is discriminatory, biased, and manifestly unjust. That such conduct by the 2nd Respondent violates the principles of equality before the law, fair administrative action, and non-discrimination as enshrined under Article 27 and Article 47 of the Constitution [of Kenya, if applicable]. That the Respondent's failure to apply uniform standards, and its decision to prosecute me while turning a blind eye to other state officers, undermines the integrity of its processes and raises serious questions of bad faith, ulterior motive, and abuse of power. That the ongoing selective treatment is causing and will continue to cause irreparable harm and prejudice to me, including loss of rights, reputation and benefits. 20.The applicant further averred that the matter is urgent because the Respondent continues to apply the law selectively which undermines the rule of law and fairness. That the 2nd Respondent is conflicted having National chairperson and National Gender Secretary being officials yet they are state officers affects the impartiality and fairness in the matter before this Honourable Court. That the 2nd Respondent is clearly conflicted in the handling of the matters before this Honourable Court, owing to the fact that both the National Chairperson and the National Gender Secretary who are key officials within the 2nd Respondent are, in fact, state officers. That the continued retention and involvement of these state officers in leadership roles within the 2nd Respondent, while the same entity purports to take adverse action against me, raises serious concerns about impartiality, bias, and institutional integrity. That the dual status of these officials as both state officers and as central figures within the 2nd Respondent creates a conflict of interest that undermines the fairness of the proceedings and renders the Respondent incapable of acting in a neutral and unbiased manner in this matter. That the conflict has directly influenced the Respondent's discriminatory conduct towards me, while shielding similarly placed individuals within its own ranks, thereby violating the principles of natural justice, fair hearing and equality before the law. 21.The applicant contended he had a legitimate expectation grounded in past practice, policy, and the law to be treated the same as other union officials. The principle of legitimate expectation arises from the 2nd Respondent's own historical practice of permitting state officers to hold leadership positions within the union without sanction, and its failure to take similar action against the National Chairperson and the National Gender Secretary, both of whom are state officers. That by departing from this established practice and subjecting me and only me to punitive action the 2nd Respondent has acted in a manner that is unfair, arbitrary, and contrary to the rule of law. That the Respondent's selective deviation from its previous conduct without justification, notice, or adherence to fair administrative procedures constitutes a breach of his legitimate expectation and undermines the values of transparency, accountability, and fairness protected under Article 10 and Article 47 of the Constitution of Kenya 2010. That the 2nd Respondent Conduct threatens to prejudice my right and administration of justice. Response 22.The application was opposed by the 2nd respondent vide affidavit of Akelo M.T. Misori, sworn on the 18th September 2025 where he averred as follows- 23.That by virtue of being the Secretary General of the 2nd Respondent herein, I am duly authorized to swear this Affidavit on its behalf. THAT I have read and understand the import of the Application dated 19th August 2025 together with the Affidavit in support of the same dated 21st August 2025 and I am equally advised by our Advocates on record that the Application dated 19th August 2025 is misplaced, bad in law, overtaken by events and should be dismissed with Costs to the 2nd Respondent. THAT I wish to state as follows to put this Application to rest and show that the same does not meet the threshold for grant of the Orders sought: - 24.THAT_the Applicant's averments in paragraph 3 and 7 of the Notice of Motion Application are MISLEADING this Court. What transpired in court on 29th July, 2025 is that all the parties, consisting of the Union, the Registrar of Trade Unions, KUPPET members living with disability, women, members from North Eastern with minimal numbers and also a Delegate – altogether agreed that all the issues raised in the Petition had been satisfactorily resolved by the amendments of 20th December, 2024. 25.That the issues stemmed from lack of affirmative action for the persons living with disability and other marginalized groups; and the Petition therefore sought to streamline the Constitution of KUPPET with the Constitution of Kenya 2010. (Annexed and marked "AM 1" is a copy of the final court order in the matter marking the same as settled). 26.That the Applicant has picked a previously drafted Consent which was never adopted as an order of the Court before Advocate Bogongo's Client rejected the same when he was joined as an Interested Party to the suit, as the record will show. (Annexed and marked "AM 2" is the consent in question). 27.That the Application is based on falsehoods; quicksand which cannot hold. Therefore it follows that all the averments that follow these untrue statements are dead on arrival and bear no merit. 28.That I am advised that as the court record will show - on 24th February, 2025 during a Mention the Hon. Linnet Ndolo directed the Parties to file Submissions. 29.That I am informed that it is only our Advocates who complied by filing Submissions with regards to the Application dated 20th February 2025. The Submissions are dated 7th April 2025; (Annexed and marked "AM 3" is a copy of our Submissions dated 7.04.2025). 30.That I am apprised that the Applicant is trying to mislead the Court by stating that on 2nd July 2025 the matter came up for Mention for Directions. On the said date, the matter came up for hearing where our Mr. Moses Nthurima was cross examined. Counsel for the Applicant attended Court on the said date physically and cross-examined Mr. Nthurima. (The Court record speaks for itself.) 31.That on the same date, the Court issued directions that parties are granted leave and should proceed and file further Submissions. 32.That I am well informed that our Advocates proceeded and filed the Supplementary Submissions dated 14th August 2025 and the same was received in Court on 22nd August 2025. (Annexed and marked "AM 4" is a copy of our Supplementary Submissions dated 14.08.2025). 33.That therefore, it is incorrect for the Applicant and the Advocates on record to state that parties in the proceedings, especially the 2nd Respondent has not complied by filing and serving the Submissions; (Annexed and marked "AM 5" is a copy of the email thread confirming service). 34.That so far, it is quite clear that the Applicant has approached the Court with unclean hands hence does not deserve the Orders sought. 35.That it is therefore crystal clear that this Application is as frivolous as can be; a mere distraction to derail the Honourable Court's focus from the real issues just to keep the Honourable Judge busy. 36.That I am informed that the Applicant seeks the Court intervention to set aside the directions of 2nd July 2025. Our Advocates on record have advised us that the said prayer is not tenable as parties attended Court on the said date and took the directions by consent. 37.That I am informed and well aware that the other prayer is for the Court to suspend the filing of submissions. The same has been overtaken by events therefore not tenable. We have already complied by filing submissions. That prayer falls. 38.That the Applicant seeks to file additional documents in support of the case stating that this information was not in their knowledge. That statement is misleading as the Applicant and the Advocates are appearing in several matters before this Court touching on the same issue and they have full knowledge of the material facts in various Courts. These matters include, inter alia, ELRC NAIROBI PETITION NO. E044 OF 2024: Regina Kinoti, Willy Kipkoech Kemboi, Hillary Kibet Chepkwony, Joseph Nzulai, Rose Nyambura Kiiru, Pauline Regina Waceke Thang'wa, Yussuf Abdullahi Mohammed, Alex Mugambi Njue and Lynette Kamadi -vs- KUPPET & Registrar of Trade Unions - and- William Lengoiyap (Interested Party). The Applicant's instant Advocate is the Advocate for the Interested Party in this said case, which was concluded on the said 29th July, 2025. 39.That this falsehood that the Applicant only came upon the information recently despite due diligence that MPs are part-time officials of KUPPET - is further supported by the fact that the Applicant who until his expulsion was a member of KUPPET, and understands the KUPPET Constitution. THAT in the KUPPET Constitution of 2017 only Branch Executive Secretaries (with a few exceptions) are full time officials of the Union. All the rest are part-time. It is not a matter of only MPs being part time. 40.That Laws and regulations do not act retrospectively. The court order that the Applicant has violated was issued on 2nd September, 2016 before the KUPPET Constitution in 2017 which paved way for the obtaining state of affairs. 41.That Counsel on record have laid down for me the threshold for Review which is as follows: For a review application to succeed in Kenya, the applicant must meet a strict threshold under Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules:a.Prove that new and important evidence not previously available despite due diligence; b. Point out a clear, self-evident error on the record;c.Prove other "sufficient reason":d.File the application without unreasonable delay;e.Apply to the same court/judge that made the original ruling. 42.That given the foregoing I am advised by my Advocates on record which advice I verily believe to be true that the Applicant has not met the threshold under Order 10 Rule 11 and Order 45 of the Civil Procedure Act on grounds for Review therefore the Application is just a mere academic exercise. 43.That I am also advised that all the grounds raised in the Application and the averments in the Affidavit in support of the Application do not support the prayers sought therein. The Application has been brought in late. We are advised that Equity will only aid the vigilant and not the indolent. 44.That it is also FALSE that the introduction of the purported new evidence at this stage will not prejudice the 2nd Respondent as I have demonstrated in this Affidavit. 45.That further, I am advised by our Advocates on record which advice I verily believe to be true that litigation must come to an end and entertaining this frivolous Application will honestly be a waste of Court's time and judicial resources. 46.That the facts, I reiterate, deposed to in the Supporting Affidavit are not sufficient to form substrata on which the Orders sought can be granted. 47.That the Application is incurably defective for want of substance, kicks of a dying horse, the same is an abuse of the Court process, frivolous, vexatious and an academic exercise. 48.That it is just meet and in the interests of fairness and justice that the Application dated 19th August 2025 be dismissed with costs to the 2nd Respondent. DETERMINATION 49.The application was canvassed by way of written submissions. 50.The issue for determination is whether the application for review of the directions by Justice Ongaya (as he then was)and the prayer for introduction of new evidence was merited. The applicant’s submissions 51.Whether failure to admit the additional evidence would occasion prejudice and miscarriage of justice. - Disallowing the additional evidence would occasion prejudice to the Applicant and undermine his constitutional right to a fair hearing as guaranteed under Article 50(1) of the Constitution, which is a fundamental safeguard in the administration of justice. The right to a fair trial includes the opportunity to present all relevant and material evidence necessary for the proper determination of the issues in dispute. Where such evidence is excluded, the Court risks being deprived of a complete factual foundation, thereby impairing its ability to arrive at a just and informed decision. 52.The additional evidence sought to be introduced will demonstrate that the National Chairperson and the National Gender Secretary of the 2nd Respondent are State officers who continue to hold public office while simultaneously serving as officials of the 2nd Respondent, yet no disciplinary, regulatory, or enforcement action has been taken against them notwithstanding that their circumstances are materially similar to those of the Applicant. The additional evidence is therefore directly relevant and material to the issues for determination, particularly whether the 2nd Respondent has acted in a discriminatory, arbitrary, or inconsistent manner in breach of the constitutional principles of equality before the law and fair administrative action. Without the admission of this evidence, the Court would be deprived of a complete factual foundation necessary to properly interrogate the allegations of unequal treatment and selective enforcement. 53.Further, the 2nd Respondent suspended the Applicant, who is no longer serving as a Member of Parliament, and proceeded to conduct elections during the pendency of these proceedings, thereby rendering the dispute substantially moot. The issues raised are no longer live for determination, as the impugned process has already been concluded and the circumstances giving rise to the dispute have materially changed. In the premises, continued litigation on the same issues would amount to an academic exercise devoid of practical utility and would constitute an inefficient use of this Honourable Court’s judicial time, which ought to be reserved for live and justiciable controversies requiring determination. The Supreme Court in Mohamed Abdi Mahamud v Ahmed Abdullahi Mohamad & 3 Others Petition 7 & 9 of 2018 held that ‘’disallowing the additional evidence would deny the Applicant a fair trial, which is a non-derogable right under the Constitution. Allowing the additional evidence is not prejudicial to any party and is in the interests of justice, as the evidence is necessary and crucial in making a proper judicial finding as to whether the Applicant had the requisite academic credentials to vie for Governor of Wajir County, which are core issues before the Court.’’ 54.The refusal to admit the additional evidence would occasion substantial prejudice, as it would deprive the Court of a complete factual foundation necessary for the just resolution of the dispute. Conversely, no prejudice will be suffered by the Respondents, as they will have full opportunity to respond to and challenge the evidence in accordance with the rules of natural justice. 55.Whether this Honourable court has jurisdiction and discretion to admit additional evidence. - This Honourable Court is vested with wide and unfettered discretion to admit additional evidence where the interests of justice so require. The jurisdiction of the Court to admit such evidence flows from the Constitution, the inherent powers of the Court, and the overriding objective of ensuring that disputes are determined fairly and on the basis of all relevant material placed before the Court. The power to admit additional evidence is intended to enable the Court arrive at a just, fair, and informed determination and to prevent any miscarriage of justice that may arise from exclusion of material evidence. 56.Article 50(1) of the Constitution of Kenya 2010 guarantees every person the right to a fair hearing, which includes the right to fully present one’s case before a court of law. In addition, Article 159(2)(d) of the Constitution of Kenya 2010 obligates courts to administer justice without undue regard to procedural technicalities. The Applicant submits that these constitutional provisions impose a duty upon this Honourable Court to prioritize substantive justice over procedural restrictions, particularly where the evidence sought to be introduced is relevant, material, and necessary for the proper determination of the dispute before the Court. 57.The principles governing the admission of additional evidence were authoritatively set out by the Supreme Court in Mohamed Abdi Mahamud v Ahmed Abdullahi Mohamad & 3 Others laid down the guiding principles for admitting additional evidence, which are routinely applied by the Court of Appeal. These principles include, inter alia, that the evidence must be directly relevant to the matter before the Court and in the interests of justice; it could not have been obtained with reasonable diligence for use earlier; it would influence or impact upon the result of the case; it must be credible; and it must be needful rather than a means to fill gaps or improve a weak case. The present Application fully satisfies the principles laid down by the Supreme Court. The evidence is directly relevant to the issues before this Honourable Court as it concerns the conduct of the 2nd Respondent, the treatment of similarly situated officials, and the alleged discriminatory and selective application of standards against the Applicant. 58.The said evidence further goes to the heart of the dispute as it demonstrates the treatment of similarly situated officials and the alleged discriminatory, selective, and inconsistent application of standards against the Applicant. Without the admission of this evidence, the Court would be deprived of a complete factual basis necessary for a fair, just, and informed determination of the issues in controversy between the parties. 2nd respondent’s submissions 59.Whether the Applicant has met the threshold for review and/or setting aside of the Court's directions issued on 2nd July 2025-. The law governing review of Court orders is settled under Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules which gave birth to Section 16 of the ELRC Act and rules 74 and 75 of the ELRC Rules. For an Applicant to succeed in an application for review, he must demonstrate:-a.Discovery of new and important matter or evidence which, after exercise of due diligence, was not within his knowledge;b.Mistake or error apparent on the face of the record;c.Any other sufficient reason;d.That the application has been brought without unreasonable delay.’ 60.The Supreme Court in Mohamed Abdi Mahamud v Ahmed Abdullahi Mohamad & 3 Others emphatically stated that review and admission of additional evidence are exceptional remedies that must be exercised sparingly and only where the interests of justice demand. Similarly, the Court of Appeal in National Bank of Kenya Ltd v Ndungu Njau held that review cannot be used to re-open litigation or to enable a party to re-argue its case merely because it is dissatisfied with earlier proceedings. In the present case, the Applicant has not demonstrated any error apparent on the face of the record nor discovery of any new evidence incapable of being obtained with due diligence. The 2nd Respondent demonstrated in the Replying Affidavit that the parties attended Court on 2nd July 2025 and directions were issued by consent after hearing proceedings in which Counsel for the Applicant fully participated. The Applicant cannot therefore approbate and reprobate by consenting to directions and later seeking to impeach the same after the 2nd Respondent complied therewith by filing Supplementary Submissions dated 14th August 2025. 61.The Court of Appeal in Flora N. Wasike v Destimo Wamboko held that a consent order has contractual effect and can only be set aside on grounds that would justify setting aside a contract, namely fraud, collusion, illegality or misrepresentation. No such grounds have been demonstrated herein. Indeed, the Applicant's allegations that parties had not complied with filing submissions are demonstrably false as the 2nd Respondent duly filed and served its submissions and supplementary submissions. The Replying Affidavit annexed evidence of service and email correspondence confirming compliance. .The Applicant has therefore approached the Court with material non-disclosure and unclean hands. The Supreme Court in Raila Odinga & Others v IEBC & Others reaffirmed that parties invoking the Court's equitable jurisdiction must approach the Court with candour, honesty and clean hands. The Applicant's conduct disentitles him from the equitable and discretionary remedies sought. 62.Whether the Applicant has satisfied the legal threshold for admission of additional evidencе: - The Applicant seeks leave to adduce additional evidence allegedly relating to part-time officials of KUPPET and Members of Parliament. The law governing admission of additional evidence is now settled by the Supreme Court in Mohamed Abdi Mahamud v Ahmed Abdullahi Mohamad & 3 Others where the Court laid down the governing principles for admission of additional evidence. The Court held that additional evidence must:- Be directly relevant to the matter before Court; Be evidence that could not have been obtained with reasonable diligence; Be credible and capable of belief; Not be intended to fill gaps or patch up weak points in a case; Not occasion prejudice to the opposing party; Be necessary for the just determination of the matter. 63.The Applicant has failed every single limb of the above test. First, the alleged "new evidence" is not new at all. The Applicant was previously a member of KUPPET and is fully conversant with the KUPPET Constitution and governance structure. 26. Secondly, the Applicant and his Advocates are actively involved in several other proceedings touching on the same constitutional amendments and governance questions within KUPPET including ELRC Petition No. E044 of 2024.The alleged information was therefore always within the Applicant's knowledge and could have been produced earlier with due diligence. The Supreme Court in the Mohamed Abdi Mahamud case cautioned Courts against allowing additional evidence intended merely to "fill gaps" or "patch up weak points" in a litigant's case. That is precisely what the Applicant seeks to do herein. Thirdly, the intended evidence lacks materiality because the KUPPET Constitution expressly provides that save for a few specified officials, union officials serve on part-time basis. 31. Article 11 of the KUPPET Constitution recognizes that only specified officials serve on full-time basis while the majority are part-time officials. The Applicant therefore seeks to introduce evidence regarding an issue already expressly provided for under the governing Constitution of the Union. Fourthly, the purported evidence is legally irrelevant because the Court order allegedly violated was issued on 2nd September 2016 whereas the relevant KUPPET constitutional amendments came into force in 2017. Laws and constitutional amendments do not operate retrospectively unless expressly stated. The Supreme Court in Samuel Kamau Macharia v Kenya Commercial Bank Ltd & 2 Others firmly held that retrospective application of laws and legal provisions is impermissible unless expressly intended by statute or the Constitution. The Applicant therefore seeks to improperly invoke subsequent constitutional provisions to challenge historical events retrospectively. 64.Fifthly, admission of additional evidence at this late stage would gravely prejudice the 2nd Respondent by reopening proceedings that have substantially progressed toward determination. Litigation must come to an end. The Supreme Court in Nicholas Kiptoo Arap Korir Salat v IEBC & 7 Others reiterated that procedural timelines and orderly litigation are essential components of substantive justice. The Applicant cannot be permitted to perpetually shift goalposts and derail conclusion of the proceedings on a whim. Whether the Application is overtaken by events, frivolous and an abuse of the Court process. The Application is plainly overtaken by events. The Applicant seeks suspension of filing of submissions yet the 2nd Respondent had already filed and served both substantive and supplementary submissions prior to the filing of the instant Application. Courts do not act in vain nor issue orders in academic or hypothetical circumstances. The Supreme Court in Raila Odinga & 5 Others v IEBC & 3 Others emphasized that Courts exist to determine live controversies and not academic exercises. Further, the Application is frivolous because it is founded upon deliberate falsehoods and distortion of the Court record. The Applicant falsely alleges that parties had not complied with filing submissions yet documentary evidence annexed to the Replying Affidavit proves otherwise. The Applicant also falsely alleges that the issues raised had not been resolved whereas the Court record clearly demonstrates that the Petition had substantially been resolved through constitutional amendments agreed upon by all stakeholders including marginalized groups, women and persons living with disabilities. The Court of Appeal in Muchanga Investments Ltd v Safaris Unlimited (Africa) Ltd & 2 Others defined abuse of Court process as misuse of judicial process in a manner significantly interfering with administration of justice. 49. The present Application falls squarely within that definition. It is intended merely to derail conclusion of proceedings and waste judicial time and resources. Who should bear costs of the Application? We humbly submit that the instant Applicant should bear the costs to be awarded to the 2nd Respondent. Costs follow the event; and we are guided by the Supreme Court's pronouncement in Rai-v-Rai. Decision on the merit of the application 65.The impugned directions of the court issued on the 2nd July 2025 by Justice Ongaya (were as follows-‘(1)The Applicant to file and serve submissions by 1st August 2025 and the 1st Respondent to file and serve further submissions by 15th September 2025.(2)Issues for determination to include:(a)Whether parties' consent can vary or even set aside a judgment or court decision in civil proceedings;(b)Whether authority of counsel duly on record can be challenged with respect to conclusion of a consent;(c)Whether previous counsel not being party to the suit or proceedings was nevertheless required to respond to the application; and(d)Whether the application has met the threshold for setting aside or varying a consent order.(3)Mention on 14th October 2024, 9:30 am for directions on delivery of ruling.f)The preliminary objection dated 3rd April 2025 is deemed part application to the application to be determined concurrently as the application and parties' submissions to address issues accordingly.SignedByram OngayaJudge02.07.2025’’ 66.The above directions of the court related to the disposal of the 2nd respondent’s application dated 20th February 2025. The said application sought the following substantive order- ‘that the unlawful consent dated 2nd December 2020 and adopted as an order of the court on the 26th February 2010 be struck out and set aside on account of fraud, collusion, duress and misrepresentation’. The impugned consent was annexed to the said application as MN3 and set aside the decree of the court dated 2nd September 2016 and further allowed the respondent and the instant applicant to be at liberty to vie for any office in the second respondent’s union in the 2017 KUPPET constitution on a voluntary basis without wages. The said consent dated 2nd December 2020 was adopted by Justice Maureen Onyango on the 24th February 2020 and issued by the Deputy Registrar on the 26th February 2020. The occurrence of events are stated herein as they appear in the documents. 67.The court considered the new evidence sought to be produced under the review application. Review of decisions/orders is allowed under the Court rules ,2024 as follows-‘74. 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 clarification; or(d)for any other sufficient reason.’ 68.The court perused the response by the applicant to the application dated 20th February 2025 for which the impugned directions were issued. In his replying affidavit, Tonui refers to the union constitution and the fact that some serving members of parliament hold office in the union, like Hon Catherine Wambilyanga and Hon Milemba. Those are the same persons he refers to and annexed evidence of their service. Tonui said NEB members of the union entered into consent to set aside the Decree and signed consent to enable office holders to contest for various seats, and it was following that they filed the consent which was adopted by Justice Maureen Onyango. 69.I find that all the alleged new evidence was within the knowledge of the applicant as at time of filing the response. Further, the alleged copy of the consent marked "Appendix -1" is not in the court record and thus is a strange document. Nothing prevented him from producing his appendix 1-3 at the time of filing the response. The applicant averred that in an effort to align itself with the judgment of Lady Justice Linnet Ndolo, the 2nd Respondent did, on 29th July 2025, record a consent before Honourable Justice Nduma Nderi in Petition No. E044 of 2024 - Regina Kinoti & 3 others vs KUPPET & 2 others, which consent was subsequently adopted as a judgment of the Court on 28th July 2025. THAT the said consent expressly provides as follows: "...noting the provisions of Section 31 of the Labour Relations Act as read together with Article 27 of the Constitution of Kenya, that the officials of the trade union or employer's organization shall be persons who are or have been engaged or employed in the sector for which the trade union or employer's organization is registered, the union Constitution shall retain the provision for Members of Parliament who are also KUPPET officials to hold their respective offices parttime..."(Annexed hereto is a copy of the consent marked "Appendix -1"). - The court found no relevance of the alleged document to the instant application, which seeks to set aside a specific order of Justice Maureen Onyango adopting consent dated 2nd December 2020. The applicant introduces an order alleged of Justice Nduma Nderi, which is not the subject of the application. I find the application did not meet the threshold of allowing new evidence as stated in the Supreme Court in Mohamed Abdi Mahamud v Ahmed Abdullahi Mohamad & 3 Others, (supra) (also cited in Gachuki & another v Njenga & 2 others (Civil Appeal (Application) 413 of 2019) [2025] KECA 451 (KLR) (7 March 2025) (Ruling) where the Court laid down the governing principles for admission of additional evidence. The Court held that additional evidence must:- Be directly relevant to the matter before Court; Be evidence that could not have been obtained with reasonable diligence; Be credible and capable of belief; Not be intended to fill gaps or patch up weak points in a case; Not occasion prejudice to the opposing party;. Be necessary for the just determination of the matter. I find the decision applicable in the review application. 70.The Court adds that the alleged new evidence is irrelevant for the determination of the application before the court, the question being whether or not the consent order dated 2nd December 2020 was tainted by fraud, collusion, duress and misrepresentation. The gist of the application is that the applicant’s advocate lacked instruction and that there were glaring anomalies with the consent. The applicant fully participated in the proceedings before Justice Ongaya, thus the right to be heard was afforded. I find no merit in the application. I further find the application is meant to delay the delivery of justice and dismiss it with costs to the 2nd respondent in the cause. The applicant is granted leave of the court to file submissions in the application dated 20th February 2025. Mention on the 20th July 2026 to issue a ruling date on the said application. 71.It is so Ordered. DATED, SIGNED, AND DELIVERED IN OPEN COURT AT NAIROBI THIS 3RD DAY OF JULY, 2026.JEMIMAH KELI,JUDGE.IN THE PRESENCE OF:Court Assistant: OtienoAppellant - absent1st Respondent – Mariaria and Bogongo2nd Respondent –Ms. Mutai h/b Okelo