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)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 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.Whether the application for review was made within reasonable time or is affected by inordinate delay
Key legal issues
#Whether discovery of a lower court criminal conviction amounts to new and important matter for review
Even assuming the conviction judgment was new, the application fails because it was not brought within reasonable time.
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.
Whether there is a nexus between the criminal conviction and the findings on unfair termination
The court found no correlation between the magistrate's judgment and its own judgment, which turned on the fairness test under the Employment Act.
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.
Legal principles established
#- 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
#- 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.Costs of the application awarded to the Claimant/Respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
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
#Stay of execution of the decree pending hearing and determination of the application
The application was dismissed in its entirety
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
Costs
Application dismissed with costs to the Claimant/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.
I decline to grant orders sought and I dismiss this application with costs.
I think the operative word in this rule is “ within reasonable time”.
Based on this ground alone, I do not find the discovery of this judgment a good reason to review the judgment of this court.
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
Issues in the judgment
#Rule numbering inconsistency: the Claimant cites Rule 76 of the ELRC (Procedure) Rules, 2024 while the court applies Rule 74 of the same rules
The case title/case number of the employment suit is not stated on the face of the ruling
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.