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ELRCDismissedInterested Party's Notice of Motion dated 19th December 2023 in ELRC Cause (judgment of 10th February 2023)· [2024] KEELRC 2341 (KLR)

Kenya Shipping, Clearing, Freight Logistics and Warehouse Workers Union v Kenya Aviation Workers Union & 5 others (Cause E253 of 2022) [2024] KEELRC 2341 (KLR)

Employment and Labour Relations Court
30 September 2024
3,897 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Interested Party, Kenya Shipping Clearing Freight Logistics and Warehouse Workers Union (KSCFWWU), brought a Notice of Motion dated 19th December 2023 seeking review of the judgment delivered on 10th February 2023, which had found that the Respondents could not lawfully terminate the Recognition Agreement with the Claimant union (KAWU), and also sought to set aside a ruling delivered on 24th July 2023 by Byram Ongaya J in ELRCC 229/2023. The Applicant argued it was the proper sectoral union and that the Claimant's Constitution and Recognition Agreement, not produced at the hearing, were newly discovered matters. The Claimant and Respondents opposed, arguing the application was incompetent, filed after an unexplained 10-month delay, without attachment of the impugned decisions, and was an attempt to reopen the matter disguised as review. The Court, applying Rule 33 of the ELRC (Procedure) Rules, 2016, held that the application was not filed within reasonable time, that the Recognition Agreement had been on record and the Constitution was not implicated by any issue at trial, that no error apparent on the face of the record was demonstrated, and that the Applicant was litigating by instalments by raising sectoral representation for the first time. No case for review of the ruling in ELRCC 229/2023 was made and that part was before the wrong court. The Notice of Motion was dismissed with each party bearing its own costs.

Key legal issues

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01

Whether the application was filed within reasonable time

Holding

The 10-month delay without explanation meant the application was not filed within reasonable time under Rule 33(1)

Reasoning

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.

p. 6
02

Whether the Claimant's Constitution and Recognition Agreement were new and important matter or evidence

Holding

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

Reasoning

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.

p. 7
03

Whether there was a mistake or error apparent on the face of the record

Holding

No specific error was identified; disagreement with the judge's conclusions is not an error apparent on the face of the record

Reasoning

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.

p. 8
04

Whether the Court could review both the judgment and the ruling in ELRCC 229/2023 simultaneously

Holding

No case for review of the ruling was made and the application seeking review of rulings by different judges was before the wrong court

Reasoning

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.

p. 8

Legal principles established

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  • 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

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  1. 1.The Interested Party's Notice of Motion dated 19th December, 2023 is dismissed
  2. 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

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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 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.