Bakery, Confectionery, Food Manufacturing and Allied Workers’ Union (K) v Milly Fruit Processors Limited [2014] KEELRC 939 (KLR)

The court reviewed the record and found the arguments about the number of unionisable employees were never raised in pleadings or at the hearing before Mukunya J. The number 250 was never clarified as including or excluding the 73 employees who had left, and no register of the 250 employees was produced. Grounds not argued at hearing cannot ground review.

The court examined section 54 of the Labour Relations Act and found both phrases used synonymously in the section. Interpretation and application of the law are matters for appeal, and the court has no jurisdiction to fault the interpretation or application of another judge of the same court.

The claimant prayed only for payment of dues not yet deducted from the employer's own funds, without specifying amounts or the legal basis for imposing such liability on the employer. Section 19 of the Employment Act does not penalise an employer to make deductions from its own funds; penalisation under section 19(5) applies only where an employer has deducted but failed to remit.

The record now shows a Verifying Affidavit of Danchel Mwangune accompanying the Memorandum of Claim, but the respondent alleged it was sneaked in later and the judge ruled it was not attached. The reviewing judge, having had no opportunity to view the record when the award was written, could not determine whether an error existed on the face of the record at the time.