Kenya Shipping, Clearing, Freight Logistics and Warehouse Workers Union v Kenya Aviation Workers Union & 5 others (Cause E253 of 2022) [2024] KEELRC 2341 (KLR)
The bottom line
#The Employment and Labour Relations Court dismissed a union's attempt to reopen a concluded case, confirming Kenya's courts reject late review applications filed without valid justification.
What this practically means
#Executive summary
#Key legal issues
#Whether the application was filed within reasonable time
The 10-month delay without explanation meant the application was not filed within reasonable time under Rule 33(1)
What constitutes reasonable time is a question of fact dependent on the peculiar circumstances of each case. Judgment was delivered on 10th February 2023 and the application filed on 21st December 2023, over 10 months later. The Applicant neither explained nor justified the delay, and although it did not address the issue, promptitude is a requirement of the rule.
Whether the Claimant's Constitution and Recognition Agreement were new and important matter or evidence
No: the Recognition Agreement was annexed to the claim and the Constitution was not implicated by any issue pleaded or raised at trial; no due diligence was demonstrated
The Recognition Agreement dated 15th January 2015 was annexed to the claim as exhibit MKN-I and available to all parties. No issue raised at the hearing necessitated perusal of the Claimant's Constitution, and the Applicant neither filed a notice to produce it nor demonstrated due diligence. As a trade union, the Applicant knew all unions have constitutions.
Whether there was a mistake or error apparent on the face of the record
No specific error was identified; disagreement with the judge's conclusions is not an error apparent on the face of the record
The Supporting Affidavit made no reference to any specific error or mistake on the face of the record or on what page. Following National Bank of Kenya v Ndungu Njau and Muyodi v ICDC, an error apparent must be self-evident; a possible different view, an erroneous conclusion of law reached after reasoning, or misconstruction of a statute are not grounds for review.
Whether the Court could review both the judgment and the ruling in ELRCC 229/2023 simultaneously
No case for review of the ruling was made and the application seeking review of rulings by different judges was before the wrong court
The Applicant sought review of the ruling in ELRCC 229/2023 delivered by Byram Ongaya J on 24th July 2023 but neither availed a copy of the ruling nor urged grounds for its review. The judge who made the ruling was still in Nairobi and was the proper judge to review it.
Legal principles established
#- An application for review must be filed within reasonable time as required by Rule 33(1) of the ELRC Rules, 2016
- An error apparent on the face of the record must be self-evident and not require elaborate argument; a mere erroneous decision or a possible different view is not a ground for review
- A party cannot invoke review jurisdiction to litigate new issues not raised at trial; that amounts to litigation by instalments
- A copy of the judgment or ruling sought to be reviewed must be filed as required by Rule 33(3) of the ELRC Rules, 2016
Court orders
#- 1.The Interested Party's Notice of Motion dated 19th December, 2023 is dismissed
- 2.Parties shall bear their own costs
- Jurisdiction invoked
- Sections 3 and 12 of the Employment and Labour Relations Court Act; Sections 80 of the Civil Procedure Act and Section 16 of the Employment and Labour Relations Court Act, 2011 (review jurisdiction); Rule 33 ELRC (Procedure) Rules, 2016
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Shipping, Clearing, Freight Logistics and Warehouse Workers Union v Kenya Aviation Workers Union & 5 others (Cause E253 of 2022) [2024] KEELRC 2341 (KLR)", Case Analysis (2024). Interested Party's Notice of Motion dated 19th December 2023 in ELRC Cause (judgment of 10th February 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2341/eng@2024-09-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.