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ELRCDismissedCause No. 842 of 2009· [2013] KEELRC 851 (KLR)

Kenya Union Of Entertainment& Music Employers v Vanguard Limited [2013] KEELRC 851 (KLR)

Industrial Court of Kenya
26 September 2013
2,886 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Industrial Court dismissed a union's attempt to overturn a payment order, confirming that review is only for narrow legal grounds—not a second chance to re-argue a lost case.

What this practically means

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Executive summary

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The claimant union, Kenya Union of Entertainment & Music Employers, moved the Industrial Court by Notice of Motion dated 30th March 2013 seeking review and/or setting aside of orders made on 24th April 2013 directing it to pay Kshs.239,394 to the grievants and barring it from deducting union dues from their entitlements, together with a stay of execution. The union argued that its Assistant Secretary General, Erick Maurice Ochieng, lacked authority under its Constitution to represent it, that he deliberately failed to defend the grievants' application of 19th October 2012 in furtherance of internal union undermining, and that the grievants had earlier disclaimed entitlement to the monies and were in arrears of union dues. The grievants opposed, restating Ochieng's authority and denying anything new warranting setting aside. The court sustained an objection striking out the claimant's supplementary affidavits filed outside the leave timelines. Holding that review lies only on the grounds in Rule 32(1) of the Industrial Court (Practice) Rules 2010 (deriving from Order 45 of the Civil Procedure Rules), the court found none demonstrated: the application was in substance an appeal against the orders, and the union admitted awareness of the proceedings from the outset. The application was dismissed with costs to the grievants/Respondents on 26th September 2013.

Key legal issues

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01

Whether the application met the legal criterion for review

Holding

The application failed because none of the Rule 32(1) grounds for review was demonstrated; the application was framed as an appeal against the orders of 24th April 2013

Reasoning

The court held that review lies only on the grounds in Rule 32(1): discovery of new and important matter, error apparent on the face of the record, breach of written law, need for clarification, or other sufficient reasons. The claimant's affidavits were a coterie of facts amounting to an appeal against the orders, which the court cannot entertain, and the claimant admitted awareness of the proceedings from the outset.

p. 4
02

Whether the claimant could disown the conduct of the matter by its Assistant Secretary General

Holding

The claimant's complaint about Ochieng's authority did not avail it, as the union admitted awareness of the proceedings with the Secretary-General appearing at the onset

Reasoning

The claimant alleged Ochieng lacked authority under its Constitution to represent it or swear the replying affidavit, and that he conspired with the grievants. The court noted the Secretary-General had appeared at the onset of proceedings and questioned why the union did not intervene early. The grievants restated Ochieng's authority.

p. 5
03

Supplementary affidavits of Job Mucuha, Godfrey Mwangi and David Kibathi

Holding

The prayer to strike out the supplementary affidavits for non-compliance with the leave order was sustained

Reasoning

Counsel for the grievants objected that the supplementary affidavits were filed outside the timelines set in the order granting leave. The court sustained the objection and struck them out.

p. 5

Legal principles established

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  • Review is available only on the grounds set out in Rule 32(1) of the Industrial Court (Practice) Rules 2010, which derives from Order 45 of the Civil Procedure Rules
  • An applicant for review who in substance re-litigates the merits, mounting an appellate configuration of issues, has not met the criterion for review

Court orders

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  1. 1.The Notice of Motion dated 30th March 2013 is dismissed
  2. 2.Costs of the application awarded to the grievants/Respondents

Authorities

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Legislation

  • Civil Procedure RulesOrder 45 rule 32
  • Industrial Court (Practice) Rules 2010Rule 32
Jurisdiction invoked
Industrial Court (Practice) Rules 2010, Rule 32 (review jurisdiction); Industrial Court original jurisdiction under Cause No. 842 of 2009

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kenya Union Of Entertainment& Music Employers v Vanguard Limited [2013] KEELRC 851 (KLR)", Case Analysis (2013). Cause No. 842 of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/851/eng@2013-09-26

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.