Fredrick Omondi Abwajo & Another v Majestic Printing Works Limited

1. On 18th March 2026, I delivered judgment in favour of the Claimants whereby I found that their summary dismissal by the Respondent was unfair and unlawful, and awarded each of them one month salary in lieu of notice plus six months’ salary as compensation. However, due to lack of documentary evidence, I declined to award them the claim for wages and house allowance arrears, gratuity, leave days not utilized, unpaid overtime and salary for the days worked before the termination. In paragraph 16 of the judgment, I observed that the documents referred to as A-P in the Statement of Claim were not filed in court alongside the pleadings. 2. The Claimants were aggrieved by that decision and filed a Notice of Motion dated 23rd April 2026 seeking the following orders: a) The Honourable Court be pleased to admit and consider the documents Marked A-P which have only became available to us and which prove the claims of salary and housing allowance arrears, RULING IN ELRC CAUSE NO. E330 OF 2022. 2

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gratuity, pending leave days, leave travelling allowance, overtime underpayment and days worked. b) The Honourable Court be pleased to review paragraphs 16 and 17 of the Judgment and find that we are entitled to salary and housing allowance arrears, gratuity, pending leave days, leave travelling allowance and days worked. c) The Honourable Court be pleased to review paragraph 17 of the Judgment to include our salary and housing allowance arrears, gratuity, pending leave days, leave allowance, overtime underpayment and pay for days worked. d) The Honourable Court be pleased to enjoin the General Secretary, Publishing, Paper Kenya Union of Manufacturers, Printing, Pulp and Packaging Industries (Kupripupa) to answer for their lack of fiduciary and duty of care. e) The Honourable Court be pleased to enjoin the General Secretary, Kenya Union RULING IN ELRC CAUSE NO. E330 OF 2022. 3 of Printing,

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Publishing, Paper Manufacturers, Packaging Industries (Kupripupa) Pulp and in these proceedings as the 2nd Respondent to produce the Recognition Agreement and confirm the validity of the Collective Bargaining Agreement attached herewith or be ordered to produce the relevant Collective Bargaining Agreement and its registration certificate. f) The Honourable Court be pleased declare that the General Secretary and the Kenya Union of Printing, Publishing, Paper Manufacturers, Pulp and Packaging Industries (Kupripupa) failed in their fiduciary and duty of care for which they ought to take responsibility and pay us special and general damages. g) Costs of this Application be paid to us by the Union in quantified amount as we act by self and not by Advocate. RULING IN ELRC CAUSE NO. E330 OF 2022. 4

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3. The Motion is brought under section 16 of the ELRC Act and Rule 74 of the ELRC Procedure Rules, and any other enabling provisions of the law, and it is supported by an Affidavit sworn by the 1st Claimant on 23rd April 2026 and a Supplementary Affidavit sworn on 17 th July 2026. The respondent did not file anything to oppose the motion but the proposed the 2nd Respondent filed a Replying Affidavit sworn on 17th June 2026, by the General Secretary, one Tereza Njeri Kagwa. Thereafter the matter was disposed of by way of written submissions filed by the Claimants and the proposed 2nd Respondent. Claimants’ case 4. The Claimants approached the proposed 2 nd Respondent, to lodge a claim on their behalf under Section 22 of the Employment and Labour Relations Court Act, 2011. Accordingly, the union filed suit against the Respondent seeking several reliefs. 5. The Federation of Kenya Employers (FKE), which had appeared for the Respondent withdrew from representing the RULING IN ELRC CAUSE NO. E330 OF 2022. 5

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1st Respondent and matter proceeded as an undefended claim. That, the Court in its judgment delivered on 18 th March 2026 noted, at paragraph 16, that documents marked A-P were not attached to the Statement of Claim. Consequently, the Court declined the claims for wage increase arrears, house allowance arrears, gratuity, pending leave, leave travelling allowance, overtime worked and salary for days worked, but awarded one month's notice pay and six months' compensation. 6. The Claimants contend that they provided the proposed 2 nd Respondent, who was representing them, with all the necessary documents but it failed to file them in court. They further averred that the union was also in possession of the said annexures Agreement when including it the handled Collective their matter Bargaining during the conciliation and at the Court level. 7. The Claimants state that after the Judgment was delivered on 18th March 2026, they approached the union on 19th March 2026 urging them to approach the Court with a Review RULING IN ELRC CAUSE NO. E330 OF 2022. 6

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Application and seek to produce the documents which were not in Court, but the union declined and told them to be content with the judgment. 8. The Claimants faulted the manner and fashion in which the union handled their case the beginning. The Claimants state that the entire claim and the documents which are alleged to have been filed in Court were not given to them or shared with them prior to filing. They were only asked to sign their Witness Statement without being afforded an opportunity to read the content. Furthermore, the Claimants allege that the 2nd Respondent told them that the documents belonged to the Union and could not leave their premises or be shared with outsiders. 9. The Claimants also point to errors in the calculation of their benefits, specifically that the 2nd Respondent used net salary instead of gross salary for calculating gratuity and left out important components of their benefits under the Collective Bargaining Agreement, including wage increase arrears, RULING IN ELRC CAUSE NO. E330 OF 2022. 7

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house allowance arrears, pending leave, leave travelling allowance, overtime worked and salary for days worked. 10. It is the Claimants' case that they have now found a copy of the Memorandum of Agreement (CBA) between Member Companies of the Printing Trades Group of the Federation of Kenya Employers and the Kenya Union of Printing, Publishing, Paper Manufacturers, Pulp and Packaging Industries. The said Memorandum of Agreement covers the period 1 st September 2019 to 31st August 2021. The Claimants contend that this Memorandum of Agreement constitutes new and material evidence which was not in their possession at the time of filing the Claim. 11. The Claimants have attached payslips at pages 65-70 of their Application showing that the 1st Claimant paid Kshs. 902 monthlies to the union and Kshs. 150 to COTU (K), while the 2nd Claimant paid Kshs. 632 monthlies to the union and Kshs. 150 to COTU (K). The 2nd Respondent admitted the Claimants' membership in the Statement of Claim. RULING IN ELRC CAUSE NO. E330 OF 2022. 8

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12. The 1st Respondent was duly served with the Application but the proposed 2nd Respondent has confirmed that the documents marked A-P which the Claimants now seek to file are the same documents they had intended to file. It denied allegation of denying the Claimant access to the documents or their request to seek review. It further denied that the failure to file the annexures was a collusion with the 1 st respondent in order to defeat the Claimants’ case and stated that it was supporting the review application in order for the Claimants to receive benefits as prayed in the claim. Issues for determination 13. Having considered the Notice of Motion, affidavits and Submissions, the main issues for determination are: a) Whether the joinder of the intended 2nd Respondent is necessary after the final judgment. b) Whether the Judgment delivered on 18th March 2026 should be reviewed as prayed. Joinder on the intended 2nd respondent RULING IN ELRC CAUSE NO. E330 OF 2022. 9

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14. The Claimants want their union joined as a 2 nd Respondent to the suit blaming it for failure to represent them well in the suit. They accuse the union of failure to produce necessary documents as exhibits leading to loss of claims which required production of the said documents to establish before the court. They also accused the union of colluding with the Respondent in order to defeat their case. 15. The union has denied the said allegations and averred that it acted in accordance with law in representing the Claimants. It further averred that it was in support of the application for review as that would grant the Claimants the reliefs it had initially sought in the pleadings. 16. There is no doubt that the application for joinder of the union as a Respondent to the suit is coming too late after the final judgment. It is reactionary and will not help the court in determining the question whether or not review of the judgment should be granted. The Claimants are using the application to seek remedy against their union for negligence in representing them. RULING IN ELRC CAUSE NO. E330 OF 2022. 10

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17. In the case of Seth Panyako v KUDHEIHA Workers[2013] KEELRC 27 (KLR) Rika J affirmed the decision in the South African case of Food and Allied Workers’ Union v Ngcobo [353/12] 2013 [ZASCA] 45[28th March 2013], that “a trade union is liable for damages if it fails to perform the mandate to represent its members.” 18. Rika J then went on to award the Claimant Kshs 850,000 as general damages stating that:“The quantum of damages should be just and equitable… It is important that Shop Stewards are protected by their Trade Unions, and equally important that Trade Unions understand the right to organize comes with responsibility to fairly represent. The Court is convinced that the Respondent acted in utmost bad faith, and did not give the Claimant the necessary legal or financial assistance, despite having recruited him as a member and received monthly subscription fees from him for years.” RULING IN ELRC CAUSE NO. E330 OF 2022. 11

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19. While I agree with the above decisions, I must say that the claimants’ dispute with their union is secondary to the dispute between them and their former employer. They are at liberty to file a fresh suit but not to introduce it herein under the guise of joinder of the union as a second respondent to the suit. Consequently, I declined the request for the joinder of the union since it is not a necessary party to the suit. Review of the Judgment delivered on 18 th March 2026 20. The Claimants invoke Rule 74 of the Employment and Labour Relations Court (Procedure) Rules, 2024 which provides that: “ (1) A person who is aggrieved by a decree or an order from which an appeal is allowed but from which no appeal is preferred or from which no appeal is allowed, may within reasonable time, apply for a review of the judgment or ruling RULING IN ELRC CAUSE NO. E330 OF 2022. 12

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(a) 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; (b) on account of some mistake or error apparent on the face of the record; (c) if the judgment or ruling requires clarification; or (d) for any other sufficient reason.” 21. The Claimants contend that the failure on the part of the 2 nd Respondent to file documents marked A-P only came to their knowledge after the Judgment was delivered on 18 th March 2026. They submit that the Trade Union, out of ill will, did not file evidentiary documents electronically and further, by choice, failed to submit hard copies to Court as required by the Rules of Procedure. RULING IN ELRC CAUSE NO. E330 OF 2022. 13

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22. The Claimants have now attached the documents marked AP, including the Memorandum of Agreement between Member Companies of the Printing Trades Group of the Federation of Kenya Employers and the Kenya Union of Printing, Publishing, Paper Manufacturers, Pulp and Packaging Industries covering the period 1 st September 2019 to 31st August 2021. 23. In the Judgment delivered on 18 th March 2026, I noted at paragraph 16, that the documents allegedly marked A-P in the Statement of Claim were not attached to the pleading and for that reason the Claimants' claims for wage increase arrears, house allowance arrears, gratuity, pending leave, leave travelling allowance, overtime worked and salary for days worked were dismissed for lack of evidence. 24. Discovery of new and important matter or evidence for purposes of review of a decision basically refers to the receipt of new facts 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. For a court RULING IN ELRC CAUSE NO. E330 OF 2022. 14

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to accept the new evidence under Rule 74 of the ELRC Rules, the applicant must demonstrate the following elements: a) That the evidence was not known or accessible to the party when the decision was made. b) That due diligence was done, that is, the party tried hard to find the information before the decision was made but failed to secure it. c) That the new evidence is material and relevant and it goes to the core of the case. d) That the new evidence is strong enough that if had been known during the trial, it would have probably led to a different outcome. 25. In the instant case, I am not convinced that the documents referred to as Annexures A-P fits the above description of discover of new and important evidence since the Claimants admitted in the supporting affidavits that they supplied the union with the necessary documents, and further that the union had in its possession the CBA but failed to produce them as exhibits in court. Likewise, the union in its replying RULING IN ELRC CAUSE NO. E330 OF 2022. 15

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affidavit did not dispute the fact that it had in possession the said documents. 26. It is trite law that review of judgments cannot be used by an applicant as an opportunity to prosecute his case afresh, introduce afterthought evidence or patch up a weak claim. Once a court delivers a final judgment, it becomes functus officio in the matter. Allowing parties to reopen concluded matters to improve their respects claims would be an affront to the principle of finality. 27. In view of the foregoing observations, I find that the Claimants have failed to establish that they have discovered any new and important evidence warranting review of the impugned judgment. All what the claimants have managed to show is the displeasure they have with the manner in which their union conducted their case. But, as I have noted above, that dispute cannot be dealt with under this suit which was concluded vide the judgment delivered on 18 th March 2026. 28. In the end, I hold that the notice of motion dated 23 rd April 2026 is benefit of merits and it is dismissed it its entirety. RULING IN ELRC CAUSE NO. E330 OF 2022. 16

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Since the Respondent did not participate in the motion, I will not condemn the Claimants to pay costs. DATED, SIGNED AND DELIVERED VIRTUALLY IN OPEN COURT AT NAIROBI THIS 24TH DAY OF SEPTEMBER, 2026. ONESMUS MAKAU JUDGE Appearance: Fredrick for Claimant Namasaka for Respondent RULING IN ELRC CAUSE NO. E330 OF 2022. 17

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