Kenya Union of Commercial, Food & Allied Workers v Swastik Aluminium & Joinery Limited (Cause 103 of 2020) [2025] KEELRC 2945 (KLR)
The bottom line
#A Kenyan employer failed to overturn an unfair termination award because it could not show its 'new evidence' was truly impossible to get earlier.
What this practically means
#Executive summary
#Key legal issues
#Whether the excel sheets and P9 forms constituted new and important matter or evidence justifying review under rule 74(1)(a)
They do not; the applicant failed to show due diligence and the evidence was not credible proof of continued employment
The Court found that if the grievants had continued in employment, that would have been an obvious fact provable by primary evidence such as letters of re-engagement, attendance registers or proof of salary payment. The applicant attributed non-availability to system migration and COVID-19 but did not show the records could not with due diligence have been obtained. The P9 forms were already the subject of the further application of 15.10.2025 in which the claimant maintained they were not new evidence.
Whether subsequent employment of any grievant defeats the finding of unfair termination
No; re-engagement does not defeat the finding of unfair termination or the remedies awarded
The Court accepted the claimant's position that only one grievant, Christopher King'o, was re-hired, and on casual terms after termination. Any subsequent re-engagement could not retrospectively negate the termination previously found. The termination letters were never set aside or withdrawn, so the finding of unfair termination and the consequential remedies stood.
Whether there was an error apparent on the face of the record
None; the findings and reliefs were founded on termination letters that were never reversed
The applicant contended the judgment rested on the erroneous assumption that the grievants had been declared redundant. The Court held there was no error on the face of the record: the grievants had been terminated and unfairly so, and the termination letters had never been reversed by the applicant. If the grievants had in fact remained at work, nothing prevented the applicant from calling them to testify at the hearing.
Legal principles established
#- To justify review on discovery of new evidence, the applicant must show that with due diligence the evidence could not have been availed at the hearing; an obvious fact of continued employment had to be proved by primary evidence such as letters of re-engagement, attendance registers or payment records
- Subsequent re-engagement of a terminated employee does not operate to defeat a finding of unfair termination already made and the remedies consequential to it
Court orders
#- 1.The application for review dated 04.06.2025 is dismissed with costs
- 2.Costs of the application granted to the claimant
- Jurisdiction invoked
- Sections 1A, 1B, 3A and 80 of the Civil Procedure Act; Order 42, 45 and rule 1(a) of the Civil Procedure Rules; Section 16 of the Employment and Labour Relations Court Act; rule 74 of the Employment and Labour Relations Court (Procedure) Rules, 2024
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Union of Commercial, Food & Allied Workers v Swastik Aluminium & Joinery Limited (Cause 103 of 2020) [2025] KEELRC 2945 (KLR)", Case Analysis (2025). Notice of motion dated 04.06.2025 (ELRC, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2945/eng@2025-10-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.