Kenya Union of Entertainment & Music Industry Employees v Regency Slots Limited

Ministry of Labour and Social Protection whereupon a Conciliator was appointed to arbitrate the dispute. However, it averred that the dispute was not resolved forcing it to institute the instant proceedings before this court. 3. The Claimant prayed for the following orders in the suit:a) That the Respondent be restrained from victimizing the 87 employees who had joined the Claimant and any other employee who was willing to join the trade union. b) That the Respondent be restrained from subjecting the 87 employees to unfair treatment. c) That the Respondent be compelled to deduct and remit to the Claimant trade union dues for the 87 employees. d) Costs of the suit. e) Any other relief the court deems fit to grant. 4. The Respondent opposed the claim. As such, the case proceeded to full trial where after the court delivered judgment on 30th April 2025. 5. The court found that indeed the Claimant had recruited the 87 employees as its members. It further found that the Claimant had duly notified the Respondent of the recruitment by sharing with the latter the list of the recruited employees on 20th December 2023. 6. Nevertheless, the court found that the Claimant did not demonstrate that it served the Respondent with a Ministerial Order as required under section 48(2) & (3) of the Labour Relations Act to enable the latter to effect the deduction ELRC CAUSE NO. E064 OF 2024 2

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process. In the absence of this evidence, the court concluded that the Respondent was under no legal obligation to deduct trade union dues from the 87 employees and remit the money so deducted to the Claimant. 7. Regarding the alleged victimization of the 87 employees, the court held that the Claimant did not provide cogent evidence to support this claim. As such, it declined to issue injunctive orders to restrain the Respondent from allegedly victimizing the said employees. However, it reiterated that the Respondent had a duty to allow members of staff to join or not to join a trade union of their choice unhindered. 8. In the ultimate, the court stated that because the Claimant did not serve the Respondent with a Ministerial Order to sanction the collection of trade union dues from the 87 employees and did not provide persuasive evidence regarding the alleged victimization of its members, the suit failed. Each party was ordered to bear own costs of the action. 9. The Claimant has now filed the application dated 17 th June 2025 seeking the following orders:a) That the court issues an order directing the management of the Respondent to commence deducting trade union dues from the salaries of employees who have joined the Claimant. b) That the court issues an order to restrain the Respondent from victimizing the employees who have taken up ELRC CAUSE NO. E064 OF 2024 3

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membership with the Claimant on account of their trade union membership. c) That the court gives directions on costs of the application. 10. The application is anchored on various grounds that are set out on the face thereof. It is also supported by an affidavit sworn by Job Mucuha. 11. The Claimant states that after the court delivered its judgment on 30th April 2025, it (the Claimant) proceeded to serve the Respondent with the Ministerial Order which requires the latter to deduct trade union dues and remit the amounts to the Claimant. It contends that it served the Respondent with the Ministerial Order on 12 th May 2025. 12. The Claimant avers that despite serving the aforesaid order on the Respondent, the latter has persisted in its refusal to commence deduction and remittance of the impugned trade union dues. Further, it (the Claimant) asserts that the Respondent has begun to harass the affected employees by forcing them to report to the police that the signatures on the check off forms were not genuine and were fraudulently procured by the Claimant. The Claimant thus prays that the court intervenes in the matter by issuing the orders sought in the application. 13. The Respondent has opposed the application. It avers that the court became functus officio with respect to this suit once it delivered its judgment on 30th April 2025. As such, it (the Respondent) contends that it is impermissible for it (the ELRC CAUSE NO. E064 OF 2024 4

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court) to reopen the matter with a view to issuing the orders which the Claimant now seeks. 14. The Respondent avers that after the court rendered itself on the matter on 30th April 2025, it can only revisit it through an application for review. It contends that the Claimant’s application is not a motion for review. 15. The Respondent avers that the court judgment, in effect, dismissed the Claimant’s quest to have it (the Respondent) deduct trade union dues from the affected employees as there was no Ministerial Order to sanction the process. The Respondent further asserts that the Claimant’s request for injunction to restrain it (the Respondent) from harassing members of staff on account of their trade union membership was declined for want of proof. As such, the Respondent contends that these matters were conclusively determined in the aforesaid judgment and the decision can only be revisited through an appeal or a motion for review but not the application filed by Claimant. Analysis 16. The application under consideration was filed pursuant to several provisions of law to wit articles 22(2), 36 and 41 of the Constitution, sections 4(1) and 48 of the Labour Relations Act, section 12 of the Employment and Labour Relations Court Act, rules 17 and 28(2) (a) of the Employment and Labour Relations Court (Procedure) Rules, 2016 and other enabling provisions of law. ELRC CAUSE NO. E064 OF 2024 5

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17. For the avoidance of doubt, the Employment and Labour Relations Court (Procedure) Rules, 2016 are no longer in force. They were replaced by the Employment and Labour Relations Court (Procedure) Rules, 2024 with effect from 16th August 2024. As such, they were not operative at the time the instant application was filed. 18. On the other hand, whilst section 12 of the Employment and Labour Relations Court Act empowers the court to grant various reliefs, it does not donate to the court the power to review its decision. This power is donated to the court by section 16 of the Act. 19. Articles 36 and 41 of the Constitution merely recognize the freedom of association and the right to fair labour practices respectively. On the other hand, article 22(2) thereof identifies various persons and entities that can sue to enforce the Bill of Rights. 20. I have set out the provisions which the Claimant has invoked to file the instant application for a reason. They all do not speak to the court’s power to review its decisions. 21. An application for review can only be filed pursuant to section 16 of the Employment and Labour Relations Court Act read together with rule 74 of the Employment and Labour Relations Court (Procedure) Rules, 2024. As such, the Respondent’s contention that the instant application does not qualify to be an application for review is correct. ELRC CAUSE NO. E064 OF 2024 6

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22. Public policy demands that a court decision should have some degree of finality. Hence the functus officio principle. 23. The principle was defined in the case of Marisia & 2 others v Kalungokor [2025] KEELC 564 (KLR) as follows:‘’By the term functus officio it means the fact that the Court has finished its business on an issue that is sought to be raised again in a matter it has handled. It could be functus officio in an interlocutory application or the whole suit. Either way, it means that the Court has closed its work and downed its tools.’’ 24. By this principle, a court of law is not permitted to reopen a decision it has rendered except as provided in law. The court may only revisit its decision through an application for review or under the slip rule in order to correct an error in it. Outside this, the only other avenue for re-opening a court matter for consideration is through an appeal. 25. Speaking to the foresaid in the case of Kabansora Millers Ltd v Nyangena [2025] KEHC 4754 (KLR), the learned Judge expressed herself as follows:‘’The doctrine of functus officio dictates that once a court has rendered its final decision, it ceases to have jurisdiction over the matter, save for specific exceptions such as review or correction of clerical or arithmetical errors.’’ 26. In the Court of Appeal case of Telkom Kenya limited v John Ochanda (suing on his own behalf and on behalf ELRC CAUSE NO. E064 OF 2024 7

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of 996 former employees of Telkom Kenya limited) [2014] eKLR, the court expressed itself on the principle as follows:“Functus officio is an enduring principle of law that prevents the re-opening of a matter before a court that rendered the final decision thereon…..The general rule that final decision of a court cannot be re-opened derives from the decision of the English Court of Appeal in re-St Nazarire Co, (1879), 12 Ch. D 88. The basis for it was that the power to rehear was transferred by the Judicature Acts of the appellate division.’’ 27. In in Raila Odinga & 2 Others v Independent Electoral & Boundaries Commission & 3 Others [2013] eKLR, the Supreme Court expressed itself on the principle in the following terms:‘’The functus officio doctrine is one of the mechanisms by means of which the law gives expression to the principle of finality. According to this doctrine, a person who is vested with adjudicative or decision making powers may, as a general rule, exercise those powers only once in relation to the same matter...The [principle] is that once such a decision has been given, it is (subject to any right of appeal to superior body or functionary) final and conclusive.’’ 28. In the instant case, the Claimant served the Respondent with a Ministerial Order in May 2025 requiring the latter to deduct ELRC CAUSE NO. E064 OF 2024 8

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and remit trade union dues to it (the Claimant). This was after the court held in its judgment of 30 th April 2025 that there was no evidence that the Order had been served on the Respondent to obligate it (the Respondent) to effect the impugned deductions and remittances. 29. The Claimant asserts that after it served the Respondent with the aforesaid Ministerial Order on 12 th May 2025, the Respondent begun threatening the employees who had taken up membership with it (the Claimant). It avers that the Respondent directed the employees to make a report to the police to the effect that it (the Claimant) had forged their signatures failing which their contracts were to allegedly be terminated. 30. As such, the Claimant now implores the court to order the Respondent to make the impugned deductions through the post judgment application. It also revisits its plea that the court issues an injunction to bar the Respondent from victimizing the affected employees notwithstanding that the court had considered this matter and declined to grant the order in its judgment of 30th April 2025. 31. As the Respondent rightly points out, the instant application is not a review motion. Rather, it requires the court to rejig its decision based on post judgment events. 32. This is not permissible. It is the very thing which the functus officio principle seeks to outlaw. As such, the application cannot be allowed. ELRC CAUSE NO. E064 OF 2024 9

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33. If the Claimant served the Respondent with the Ministerial Order at the post judgment stage and the Respondent has declined to act on it, this generates a new cause of action which should be the subject of a new suit. Similarly, if the Respondent begun threatening its employees on account of their membership with the Claimant after this court had delivered its judgment on 30 th April 2025, that constitutes a new cause of action which should perhaps be the subject of a new suit. The Claimant cannot seek to reopen these proceedings in a bid to litigate these matters. Determination 34. The upshot is that the court finds that the instant application is bad in law for offending the principle against functus officio. 35. As such, it is dismissed with costs to the Respondent. Dated, signed and delivered on the 25th day of September, 2026 B. O. M. MANANI JUDGE In the presence of: …………….for the Claimant …………….for the Respondent ELRC CAUSE NO. E064 OF 2024 10

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ORDER In light of the directions issued on 12 th July 2022 by her Ladyship, the Chief Justice with respect to online court proceedings, this decision has been delivered to the parties online with their consent, the parties having waived compliance with Rule 28 (3) of the ELRC Procedure Rules which requires that all judgments and rulings shall be dated, signed and delivered in the open court. B. O. M MANANI ELRC CAUSE NO. E064 OF 2024 11

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