Kakuzi Limited v Kenya Plantation & Agricultural Workers Union (Cause 992 of 2012) [2014] KEIC 146 (KLR)
The bottom line
#Kenya's Industrial Court clarified its judgment on rest-day pay but refused to change it, warning that review cannot be used as a disguised appeal.
What this practically means
#Executive summary
#Key legal issues
#Whether the judgment required clarification under Rule 32(1)(d)
No further clarification was required; the judgment of 28th June 2013 already clearly held that rest days were paid under a complex formula which could be disregarded because the CBA, which has the force of law, provided for payment of rest days.
The court re-examined its June 2013 determination and found it plain: the Claimant had been paying rest days using a complex formula that should be simplified and was not binding given the registered CBA. Since the CBA is registered in the court and has the force of law, the court could not conceive of what further clarity could be brought. The respondent simply had not digested the decision.
Whether the application was a disguised appeal or relitigation
Though at first flush an attempt at appeal, the application was properly one for clarification; however a party seeking to overturn findings must appeal, and courts will not allow a second bite at the cherry.
The court acknowledged the application appeared to appeal its own decision but concluded on close examination the respondent had not digested the judgment. The claimant correctly argued that a party dissatisfied with findings should appeal; the authorities cited were on point that review cannot be used to question the merits of a judgment or reopen evidence.
Timeliness of the review application
A review brought three months after judgment was not inordinately long, though in civil cases reviews should not be permitted beyond a reasonably short period.
The court accepted that review can be sought within a reasonable time, even months after a decision for good cause, citing Joseph C. Musyoki v AG. It distinguished criminal cases, where greater latitude may apply since the applicant might be in custody, from civil cases where reviews beyond about three months would be absurd. Here the three-month delay was acceptable.
Legal principles established
#- A court cannot sit on appeal on its own decision; review applications must be treated with great caution so as not to permit relitigation.
- In civil cases it would be absurd to permit reviews beyond a reasonably short period such as three months.
Court orders
#- 1.Clarification given: rest days were paid using a complex formula which could be disregarded since the CBA provided for payment of rest days
- 2.Each party to bear their own costs
- 3.It is so ordered
- Jurisdiction invoked
- Section 16 of the Industrial Court Act 2011 and Rule 32 of the Industrial Court (Procedure) Rules 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kakuzi Limited v Kenya Plantation & Agricultural Workers Union (Cause 992 of 2012) [2014] KEIC 146 (KLR)", Case Analysis (2014). Not stated in extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keic/2014/146/eng@2014-01-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.