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ELRCDismissedNot stated in judgment (Employment and Labour Relations Court, Nairobi; ruling on Notice of Motion dated 17th January 2025)

Shiamala v Kenya National Private Security Workers Union & another; Kenya National Private Security Workers Union, Nairobi County Branch (Interested Party) (Employment and Labour Relations Cause 1178 of 2018) [2025] KEELRC 2818 (KLR)

Employment and Labour Relations Court
21 October 2025
2,482 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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An employer's attempt to reopen a lost unfair dismissal case failed because it waited about two years after judgment to ask for review.

What this practically means

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Executive summary

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The Respondents/Applicants moved the ELRC by Notice of Motion dated 17th January 2025 seeking a stay of execution and review of the court's judgment of 8th December 2023, which had found the Claimant's summary dismissal unfair and awarded him the equivalent of five months' salary (Kshs 262,500) plus one month's notice pay. The applicants relied on a supposed discovery of new evidence: the Claimant's conviction on 17th January 2023 in Nairobi Chief Magistrate's Court Criminal Case No. 1410 of 2018 (Republic v Jairus Katere Shamala) for stealing by agent, concerning cheques belonging to Patrick Shikuri and George Okaka - the same allegations underlying the dismissal. They argued that had this judgment been before the court, the claim would have failed. The Claimant/Respondent opposed, arguing the application failed the review thresholds under Rule 74 of the ELRC (Procedure) Rules, 2024 (and Section 80 Civil Procedure Act and Order 45), was brought inordinately late - roughly two years after the judgment and over a year after the conviction was already in existence during the trial - and had no nexus to the fairness findings under the Employment Act. The court, per Wasilwa J, framed the issue around the requirement that review be sought 'within reasonable time'. Noting the magistrate's judgment predated this court's judgment by over ten months and that no review was sought until January 2025, the court found the delay alone dispositive, saw no correlation between the two judgments, and dismissed the application with costs on 21st October 2025.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the conviction of the Claimant in Nairobi Chief Magistrate's Court Criminal Case No. 1410 of 2018 constitutes discovery of new and important matter or evidence justifying review of the judgment of 8th December 2023
  2. 2.Whether the application for review was made within reasonable time or is affected by inordinate delay

Key legal issues

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01

Whether discovery of a lower court criminal conviction amounts to new and important matter for review

Holding

Even assuming the conviction judgment was new, the application fails because it was not brought within reasonable time.

Reasoning

The court set out the Rule 74 grounds for review, including discovery of new and important matter not producible despite due diligence. The magistrate's judgment had been delivered on 17th January 2023, before this court's judgment of 8th December 2023, yet the applicants did not seek review until January 2025. The delay of about two years, unexplained, was dispositive against the application.

p. 6
02

Whether there is a nexus between the criminal conviction and the findings on unfair termination

Holding

The court found no correlation between the magistrate's judgment and its own judgment, which turned on the fairness test under the Employment Act.

Reasoning

The claimant argued the judgment rested on procedural fairness findings, not merely on absence of proof of theft. The court agreed there was no demonstrated connection between the criminal conviction and the findings that the termination did not pass the fairness test. The alleged new evidence was therefore neither relevant nor important in the circumstances.

p. 6

Legal principles established

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  • An application for review under Rule 74 of the ELRC (Procedure) Rules, 2024 must be brought within reasonable time; inordinate and unexplained delay is itself a sufficient ground to refuse review even where new evidence is alleged.

Court orders

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  1. 1.The Notice of Motion dated 17th January 2025 seeking review of the judgment of 8th December 2023 and stay of execution is dismissed
  2. 2.Costs of the application awarded to the Claimant/Respondent

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Employment and Labour Relations Court (Procedure) Rules, 2024, Rule 74 (review jurisdiction); Section 80 Civil Procedure Act and Order 45 Civil Procedure Rules cited

Relief refused

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Stay of execution of the decree pending hearing and determination of the application

The application was dismissed in its entirety

p. 6

Review of the judgment of 8th December 2023 and setting aside of the decree dismissing the claimant's claim

Application filed about two years after the judgment, not within reasonable time, and no correlation between the magistrate's judgment and this court's judgment

p. 6

Costs

Application dismissed with costs to the Claimant/Respondent.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

I decline to grant orders sought and I dismiss this application with costs.
p. 6Disposition - dismissal of review application
I think the operative word in this rule is “ within reasonable time”.
p. 6Review - reasonable time requirement
Based on this ground alone, I do not find the discovery of this judgment a good reason to review the judgment of this court.
p. 6Delay defeats review
if there is discovery of a new and important matter or evidence which, despite the exercise of due diligence, was not within the knowledge of that person or could not be produced by that person at the time when the decree was passed or the order made
p. 5Grounds for review under Rule 74

Issues in the judgment

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minor

Rule numbering inconsistency: the Claimant cites Rule 76 of the ELRC (Procedure) Rules, 2024 while the court applies Rule 74 of the same rules

minor

The case title/case number of the employment suit is not stated on the face of the ruling

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, "Shiamala v Kenya National Private Security Workers Union & another; Kenya National Private Security Workers Union, Nairobi County Branch (Interested Party) (Employment and Labour Relations Cause 1178 of 2018) [2025] KEELRC 2818 (KLR)", Case Analysis (2025). Not stated in judgment (Employment and Labour Relations Court, Nairobi; ruling on Notice of Motion dated 17th January 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2818/eng@2025-10-21

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