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ELRCDismissedApplication dated 16th October, 2014 (arising from judgment delivered 18th February, 2014)· [2017] KEELRC 1990 (KLR)

Kenya Union of Commercial Food and Allied Workers v Meru North Farmers Co-operative Ltd [2017] KEELRC 1990 (KLR)

Industrial Court of Kenya (Employment and Labour Relations Court)
7 November 2017
MMM. Mbaru
831 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employment court refused to reopen a 2014 judgment because the union showed no new evidence, error, or legal basis for review.

What this practically means

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Executive summary

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The claimant union applied by notice dated 16th October, 2014 for review of the court's judgment of 18th February, 2014 in an employment dispute in which a grievant with 22 years of service was found to have been unfairly terminated, though contributory, and whose reinstatement was declined. The union sought terminal dues computed per clause 4(e) of the parties' CBA, invoking section 49 of the Employment Act, 2007. The respondent, which had changed name from Meru North Farmers Sacco Limited to Dhabiti Sacco Limited, opposed the application, noting it had tendered the amounts due under the court order (offering Kshs.29,126.10) which the claimant declined to collect. The court applied Rule 33 of the Industrial Court (Procedure) Rules, 2012, the rules in force at filing, which permits review on discovery of new and important matter, error apparent on the face of the record, breach of written law, need for clarification, or other sufficient reason. The court found the application premised on non-existent paragraphs of the judgment (cited as 274 to 284 when the judgment has 22 paragraphs), that the earlier judgment had addressed the claim in its entirety, and that no new matter, error, breach of law or sufficient cause had been demonstrated. The court also emphasised the distinction between review and appeal on a point of law. The application was dismissed with each party bearing its own costs.

Key legal issues

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01

Threshold for review under Rule 33 of the Industrial Court (Procedure) Rules, 2012

Holding

The claimant's application failed to meet the Rule 33 threshold; no new matter or evidence, error on the face of the record, breach of law or sufficient cause was established, so the application was dismissed.

Reasoning

The court set out the grounds in Rule 33 and applied them to the application. The claimant relied on passages of the earlier judgment said to be paragraphs 274 to 284, yet the judgment comprised only 22 paragraphs. The court found the earlier judgment had addressed the entire Memorandum of Claim, found the grievant unfairly terminated but contributory, and declined reinstatement. Nothing new or erroneous was shown. Review and appeal are distinct remedies and the applicant must choose appropriately.

p. 1

Legal principles established

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  • A review under Rule 33 must be founded on discovery of new and important matter or evidence, a mistake or error apparent on the face of the record, breach of written law, need for clarification, or other sufficient reason; a party dissatisfied on a point of law must appeal rather than seek review.
  • An applicant must distinguish between review and appeal and choose the appropriate mode.

Court orders

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  1. 1.The application dated 16th October, 2014 is dismissed
  2. 2.Each party to bear own costs
Jurisdiction invoked
Industrial Court (Procedure) Rules, 2012, Rule 33 (review of a decree, order, award, judgment or ruling of the Court)

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 Union of Commercial Food and Allied Workers v Meru North Farmers Co-operative Ltd [2017] KEELRC 1990 (KLR)", Case Analysis (2017). Application dated 16th October, 2014 (arising from judgment delivered 18th February, 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2017/1990/eng@2017-11-07

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