Kenya Union of Commercial, Food and Allied Workers v Nestle Kenya Limited; Gicobi & 7 others (Applicant) (Cause E811 of 2023) [2025] KEELRC 138 (KLR)
The bottom line
#What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Court can entertain a fresh prayer for Muthoni Njagi Advocates to come on record after that prayer was declined in the Ruling of 14 May 2024
- 2.Whether the Ruling of 14 May 2024 and the Cause could be stayed pending the Review application
- 3.Whether the Ruling of 14 May 2024 should be reviewed or set aside on the ground of discovery of new material evidence (the Settlement Agreement)
- 4.Whether there was an error apparent on the face of the record in the Ruling's treatment of the consent of 16 November 2023
Key legal issues
#Whether the Court could entertain afresh the prayer for Muthoni Njagi Advocates to come on record
The prayer could not be entertained; the proper remedy was appeal, and rehearing it would reopen a determined issue.
The Ruling of 14 May 2024 had already declined the same prayer. The Court of concurrent jurisdiction cannot sit on appeal over its own decision or reopen a determined issue. The applicants' remedy against the earlier Ruling was an appeal, not a fresh application repeating the declined prayer within a review Motion.
Whether stay of the Ruling and of the Cause could issue
No stay: the Ruling produced a negative order which cannot be stayed, and the Cause had been settled by the consent so nothing remained to stay.
The Ruling of 14 May 2024 dismissed the initial Motion, producing a negative order; courts cannot stay negative orders. Further, upon execution of the consent of 16 November 2023 the Cause stood settled, and even if the consent was not formally adopted there was no Cause pending for hearing on the merits capable of being stayed.
Whether the Ruling should be reviewed for discovery of new material evidence
No: the Settlement Agreement was unsigned and inadmissible, and its discovery was not properly established.
Rule 74 of the ELRC (Procedure) Rules, 2024 sets out the grounds for review. The applicants relied on discovery of a Settlement Agreement and cited section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules. However, they did not disclose when they found the document, and the copy filed was unsigned, making its antecedents doubtful and inadmissible.
Whether there was an error apparent on the face of the record in the Ruling's treatment of the consent
No error: the validity of the consent did not depend on Court adoption, and setting it aside required proof of fraud or non-disclosure which was not demonstrated.
The applicants conflated the question of the consent's validity with its adoption by the Court. Adoption was only relevant to enforcement if a party reneged. In the earlier Ruling the Court, applying Kuwinda Rurinja Co Ltd v Kuwinda Holdings Ltd, had found no fraud or non-disclosure of material facts; the review Motion sought impermissibly to revisit that determination.
Legal principles established
#- A court cannot stay a negative order - an order that merely dismisses an application.
- The validity of a consent between parties does not depend on adoption by the Court; adoption is of legal utility only for enforcement if a party reneges.
- A review application that seeks to revisit questions already decided improperly invokes appellate jurisdiction and res judicata bars relitigation of determined issues.
- An unsigned Settlement Agreement does not meet the standard for admissibility.
Court orders
#- 1.The Motion dated 24 June 2024 is dismissed with costs to the Claimant and Respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Review jurisdiction under Rule 74 of the Employment and Labour Relations Court (Procedure) Rules, 2024 (previously Rule 33 of the 2016 Rules); section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules urged by applicants
Relief refused
#Leave for Muthoni Njagi Advocates to enter appearance on behalf of the applicants
The prayer was already declined in the Ruling of 14 May 2024; entertaining it again would amount to sitting on appeal over a decision of a court of concurrent jurisdiction and reopening a determined issue
Stay of the Ruling delivered on 14 May 2024
The Ruling dismissed the applicants' Motion and the resulting order was a negative order which cannot be stayed
Stay of the hearing of the main Cause
The Cause stood settled upon execution of the consent of 16 November 2023, so there is no pending Cause to stay
Review and/or setting aside of the Ruling of 14 May 2024 on the ground of discovery of new material evidence
The Settlement Agreement relied on was unsigned and inadmissible, and the applicants did not disclose when they came across it
Review based on alleged error apparent on the face of the record
The validity of the consent did not depend on adoption by the Court; the applicants conflated two distinct issues and were in effect seeking an appellate remedy
Costs
The Motion dated 24 June 2024 dismissed with costs to the Claimant and Respondent.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
It is not open to this Court to entertain the prayer again since the Court would not only be sitting on appeal over a decision by a Court of concurrent jurisdiction but reopening a determined issue.
There are a myriad of authorities to the efiect that a Court cannot stay a negative order.
The validity of a consent such as was in contention as between the parties did not depend on adoption by the Court.
The Court is of the view that by entertaining the review application it will be invoking a jurisdiction which is properly an appellate jurisdiction.
In light of the above, the Motion dated 24 June 2024 is found without merit and it is dismissed with costs to the Claimant and Respondent.
Issues in the judgment
#The judgment refers to a stay of the Ruling 'delivered on 14 May 2014' in paragraph 19, which conflicts with the consistently stated date of 14 May 2024 elsewhere.
Seven Grievants are described as 'some 8 Grievants' although only seven names are listed.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Union of Commercial, Food and Allied Workers v Nestle Kenya Limited; Gicobi & 7 others (Applicant) (Cause E811 of 2023) [2025] KEELRC 138 (KLR)", Case Analysis (2025). Cause (Motion dated 24 June 2024) arising from the Claim against Nestle Kenya Ltd. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/138/eng@2025-01-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.