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ELRCPartially AllowedCause (unstated) - Notice of Motion dated 30th November 2015

Kenya Airways Pilots Association v Kenya Airways Limited [2016] KEELRC 1547 (KLR)

Employment and Labour Relations Court
25 February 2016
2,545 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court threw out a union's review application because it lacked a supporting affidavit and memorandum — procedure matters.

What this practically means

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Executive summary

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The Claimant filed a Notice of Motion on 30th November 2015 under sections 12(3)(i) and 16 of the Employment and Labour Relations Court Act and Rules 16 and 32 of the Court Rules, seeking stay of execution, review and setting aside of orders made on 25th November 2015 to the extent that the Claimant's members were compelled to sign the Code of Business Conduct and Ethics. The Claimant argued there was an error apparent on the face of the record, as the court issued mandatory orders the Claimant never sought, having come to court seeking prohibitory orders. The Respondent opposed, contending the application was incompetent for want of form, failed to comply with Rule 32, attached no impugned orders, disclosed no error apparent on the face of the record, and that the court was functus. The court held that rules of procedure give meaning to due process and cannot be circumvented through Article 159(2)(d); an application under Rule 32 must be accompanied by a memorandum and supporting affidavit, and a party seeking review must attach the order subject of review. The Claimant's application was left bare, having neither memorandum nor supporting affidavit. However, noting that the Claimant was aggrieved and that the Respondent conceded that reverting the parties to their 2nd October 2015 position would suffice, the court, in the interests of justice, vacated the interim orders in their entirety and directed the parties to take hearing dates for the main cause. Judgment was delivered at Nairobi on 25th February 2016 by M. Mbaru, Judge.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Claimant's application for review complies with Rule 32 of the Court Rules (Form 6, memorandum and supporting affidavit requirements)
  2. 2.Whether there is an error apparent on the face of the record in the orders made on 25th November 2015 warranting review
  3. 3.What directions should issue in the interests of justice

Key legal issues

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01

Compliance with Rule 32 requirements for review applications

Holding

An application for review must be supported by a memorandum and affidavit; failure leaves the application defective

Reasoning

The court held that Rules of procedure give meaning to due process and enable effective response by the opposing party. Rule 32 requires a memorandum setting out grounds for review and a supporting affidavit. These are mandatory requirements that a represented party must meet; the want of form cannot substitute for fundamental requirements. The court applied its own prior decisions to this effect.

p. 4
02

Relationship between Article 159(2)(d) and procedural rules

Holding

Article 159(2)(d) cannot override specific provisions of legislation or Rules of procedure

Reasoning

Relying on its earlier decisions in Samuel Sila Mwisa and Michael Njai, the court held that the constitutional command to disregard technicalities must be read together with the purpose of procedural rules, which ensure an effective and proficient system. Mandatory rules cannot be wished away in the civil process without disrupting the administration of justice.

p. 4
03

Review for error apparent on the face of the record

Holding

No review granted; the application was dismissed as procedurally defective and interim orders vacated

Reasoning

Although the court found the Claimant aggrieved by the orders of 25th November 2015, the defective application could not sustain review. Balancing the interests of justice, and noting the Respondent's concession that reverting parties to their 2nd October 2015 position would suffice, the court vacated the interim orders and directed the parties to take hearing dates for the main cause.

p. 4

Legal principles established

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  • Rules of procedure serve due process and mandatory procedural requirements such as a supporting affidavit and memorandum cannot be dispensed with under Article 159

Court orders

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  1. 1.Orders made in the interim are vacated in their entirety
  2. 2.Parties shall proceed and take hearing dates for the main cause

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Sections 12(3)(i) and 16 of the Employment and Labour Relations Court Act; Rules 16(1), (2) and 32 of the Court Rules

Relief refused

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Review and setting aside of the orders of 25th November 2015 compelling Claimant members to sign the Code of Business Conduct and Ethics

The application was left bare - no memorandum in support or supporting affidavit was filed, failing the mandatory requirements of Rule 32

p. 4

Costs

No costs order made in the judgment

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The Rules of procedure are meant to give meaning to due process.
p. 3Purpose of procedural rules
The undue regard to technicalities under Article 159(2) of the Constitution does not remove the operation of Rules of Procedure as by law established
p. 4Article 159 and procedural rules
In the interests of justice, noting the application and Notice of Motion before court, orders herein made in the interim are vacated in their entirely, parties shall proceed and take hearing dates for the main cause.
p. 4Final orders/disposition

Issues in the judgment

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minor

Date inconsistency - the impugned orders are referred to variously as 25th November 2015 and 25th October 2015

minor

Case name misspelling - 'Miyodi versus ICDC & Another' versus 'Muyodi versus ICDC & Another'

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kenya Airways Pilots Association v Kenya Airways Limited [2016] KEELRC 1547 (KLR)", Case Analysis (2016). Cause (unstated) - Notice of Motion dated 30th November 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1547/eng@2016-02-25

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.