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ELRCDismissedPetition No E088 of 2021· [2023] KEELRC 2655 (KLR)

Kenya Aviation Workers Union v Kenya Airports Authority (Petition E088 of 2021) [2023] KEELRC 2655 (KLR)

Employment and Labour Relations Court
27 October 2023
ANAbuodha Jorum Nelson
1,415 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court dismissed an employer's bid to overturn a discrimination ruling, confirming you cannot re-run your case with documents you always had.

What this practically means

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Executive summary

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The Respondent (employer) applied under section 16 of the Employment and Labour Relations Court Act, 2011 and Rules 17 and 33 of the ELRC (Procedure) Rules, 2016 for review of the judgment delivered on 6th June 2022 by Lady Justice M. Mbaru, which had declared the recruitment of security wardens in 2018/2019 at job group S2 discriminatory, unlawful and an unfair labour practice, and entitled them to equal remuneration for work of equal value with the 2015/2016 recruits. The Respondent argued it had inadvertently failed to place before the court the job requirements and qualifications for the two recruitment exercises, which it said were distinctly different, and sought a declaration that there was no discrimination. The Petitioner opposed, contending the documents relied on (letters, contracts and internal memos of 2015 and 2018) were authored by and in the custody of the Respondent throughout the litigation, so no new matter was discovered, and the application was an afterthought and abuse of process intended to delay compliance with the judgment. The court, Abuodha Jorum Nelson J, held that the documents existed since 2015 and 2018 and were within the Applicant's custody and knowledge, that the Applicant was giving the court piecemeal evidence, and that 'sufficient reason' under Rule 33 must be analogous to discovery of new matter or error on the face of the record. The Applicant also failed to show the documents would alter the discrimination finding. The application was dismissed with costs on 27th October 2023.

Key legal issues

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01

Whether the Applicant discovered new and important matter or evidence under Rule 33(1)(a)

Holding

No new evidence was discovered; the documents were in existence since 2015 and 2018 and were in the Applicant's custody and knowledge, so they could have been produced before judgment.

Reasoning

The Applicant admitted it did not avail the job requirements for the two recruitment periods during the hearing. The court found the documents existed since 2015 and 2018 and were authored and held by the Respondent itself, with no explanation why they were not produced as defence. Producing them post-judgment amounted to litigating in piecemeal.

p. 3
02

Whether there was any other sufficient reason under Rule 33(1)(d) to warrant review

Holding

Sufficient reason must be analogous to the other enumerated grounds; the Applicant's assertion that the recruitments were different did not qualify and would not alter the discrimination finding.

Reasoning

Relying on precedent, the court held that 'sufficient reason' means grounds analogous to error on the face of the record or discovery of new matter. The evidence was not new, and the Applicant did not illustrate how the documents would alter the judgment that the 2018 security wardens were discriminated against.

Legal principles established

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  • Sufficient reason for review under Rule 33 must be analogous to discovery of new evidence or error apparent on the face of the record; evidence that was in a party's custody and knowledge before judgment is not new matter.

Court orders

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  1. 1.The Respondent's application for review dated 6th July 2022 is dismissed with costs
  2. 2.It is so ordered

Authorities

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Legislation

  • Employment and Labour Relations Court Actsection 16
  • Employment and Labour Relations Court (Procedure) Rules, 2016Rule 17
  • Employment and Labour Relations Court (Procedure) Rules, 2016Rules 33(1)(a), (d) and (2)

Cases cited (3)

  • Kenya Engineering Workers Union v Steel Structures Limited; Kenya Building, Construction, Timber and Furniture Industries Employees Union (Interested Party)
    [2020] eKLR
  • Nasibwa Wakenya Moses v University of Nairobi & another
    [2019] eKLR
  • Sadar Mohamed vs Charan Signh and Another
Jurisdiction invoked
Section 16 of the Employment and Labour Relations Court Act, 2011 and Rules 17 and 33(1)(a), (d) and (2) of the Employment and Labour Relations Court (Procedure) Rules, 2016

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 Aviation Workers Union v Kenya Airports Authority (Petition E088 of 2021) [2023] KEELRC 2655 (KLR)", Case Analysis (2023). Petition No E088 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2655/eng@2023-10-27

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