Kenya Engineering Workers Union v Ashut Engineering Limited (Plastic Division) (Employment and Labour Relations Cause E6585 of 2020) [2025] KEELRC 2816 (KLR)
The bottom line
#The Employment Court refused to review its own judgment on gratuity and leave pay, telling the union that such complaints belong on appeal, not review.
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 application satisfies the grounds for review under Rule 74 of the ELRC (Procedure) Rules
- 2.Whether the court is functus officio and cannot review its own judgment
- 3.Whether the letters on payment of gratuity to other employees constitute newly discovered evidence
- 4.Whether the court declined to award service gratuity and leave allowance without considering the CBA and the parties' evidence
Key legal issues
#Whether the grounds for review under Rule 74 of the ELRC (Procedure) Rules were met
The application fails; the grounds for review do not extend to filling in gaps in a judgment already rendered, and alleged failure to consider evidence or submissions is a ground of appeal, not review.
The court examined the applicant's grounds - that certain prayers were declined or not considered and that the CBA was not applied - and held that review under the court's rules is confined to discovery of new and important matter, error apparent on the face of the record, or clarification. Alleged failure to consider evidence and submissions goes to the merits and lies on appeal. The court therefore declined to re-open its own judgment.
Whether the letters showing other employees were paid gratuity constitute newly discovered evidence
No - the court did not find the review ground plausible, and the respondent had argued the letters were available before the hearing and were never formally adduced at trial.
The applicant relied on letters dated 2021 showing colleagues were paid service gratuity, arguing they were new evidence. The respondent countered that the documents were in the claimant's possession well before the hearing on 9th May 2024, were never formally produced at trial, and so did not meet the threshold of newly discovered evidence under Rule 74. The court ultimately found no plausible ground for review and declined to sit in appeal over its own judgment.
Legal principles established
#- Review does not lie to fill gaps in a judgment or to re-open matters a party believes were not considered; such grievances are for appeal.
- A court cannot sit on appeal over its own judgment in the guise of review.
Court orders
#- 1.The Notice of Motion dated 14th December 2024 seeking review of the judgment delivered on 11th October 2024 is dismissed
- 2.No order of costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Rule 74 of the Employment and Labour Relations Court (Procedure) Rules (review jurisdiction)
Relief refused
#Review of the judgment delivered 11th October 2024 and grant of service gratuity and leave allowance as sought in the Memorandum of Claim
The grounds cited do not extend to filling gaps in a rendered judgment; failure to consider evidence and submissions is a matter for appeal, not review, and the court cannot sit on appeal over its own judgment
Costs
There shall be no order of costs (each party to bear own costs).
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.
The grounds upon which court can review court’s judgment are set out in this court’s rules cited in this judgment and this does not extend to filing in gaps in a judgment which has been rendered.
Where a court fails to consider evidence and submissions, I believe this is a matter for appeal and outside the province of review.
I decline to sit an appeal on my own judgment and dismiss the application accordingly. There shall be no order of costs.
Issues in the judgment
#The judgment dates are internally inconsistent: the review is said to target a judgment of 11th October 2024, but the closing passage refers to a judgment of 11/10/25, which post-dates the application.
Typographical errors in the judgment, including 'functus oficio' for 'functus officio' and 'not inconcluded' for 'not concluded'.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Engineering Workers Union v Ashut Engineering Limited (Plastic Division) (Employment and Labour Relations Cause E6585 of 2020) [2025] KEELRC 2816 (KLR)", Case Analysis (2025). Not stated in the excerpt (ELRC review application arising from a judgment delivered 11th October 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2816/eng@2025-10-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.