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ELRCDismissedNot stated in the judgment extract· [2016] KEELRC 1500 (KLR)

Kenya Electrical Trade and Allied Workers Union v Kenya Power and Lighting Company Ltd [2016] KEELRC 1500 (KLR)

Industrial Court (Employment and Labour Relations Court)
18 March 2016
ANAbuodha J. N.
692 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Employment Court in Kenya dismissed a union's second attempt to review an old award, confirming you only get one shot at review.

What this practically means

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Executive summary

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The claimant union moved the Court by Notice of Motion dated 6th February 2014 seeking review and variation of order no. 6 of the award of 27th November 2009, so that the minimum basic salary for the lowest union grade (UG 12) be Kshs.13,000 per month effective 1st January 2009, and further sought orders compelling the respondent to comply with orders 2 and 3 of that award. Counsel for the claimant (Mr. Onyony) argued that the award had been accorded different meanings by the parties, that an earlier application dated 12th February 2012 (referenced as dated 10th February 2010 elsewhere) was merely for interpretation and was substantially different from the present review, and relied on authorities including Geoffrey Mundia Kabethi v. Peter Wanjohi Njogu & Anor. The respondent (Ms. Kamau) countered that the applicant was estopped by rule 32(7) from filing a second review application, that the earlier application was substantively a review as the Court had itself observed, and that the Court was functus officio. The Court agreed with the respondent, holding that the present application, though couched as a review, raised the selfsame issues as the earlier application, and that under rule 32(7) an order made on review is not subject to further review. The application was found without merit and dismissed with costs on 11th March 2016, delivered 18th March 2016, by Abuodha J.

Key legal issues

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01

Res judicata / second review of an award

Holding

The application was barred: it raised the same issues as the earlier 10th February 2010 application, and rule 32(7) prohibits a further review of an order made on review.

Reasoning

The Court compared the present application with the submissions and ruling on the earlier application of 10th February 2010, which the Court had already observed was substantively a review rather than a mere interpretation. Since an order on review is not amenable to further review under rule 32(7), the claimant was estopped from mounting a second review and the application was dismissed with costs.

p. 2
02

Functus officio

Holding

The respondent's functus officio argument was accepted in substance - the Court had pronounced judgment and ruled on the earlier review application.

Reasoning

Ms. Kamau submitted that the Court became functus officio upon delivering judgment and ruling on the application dated 10th February 2010, which was substantively a review application. The Court agreed with the respondent's position that the present application raised the selfsame issues, effectively endorsing that it could not revisit the matter a second time under rule 32(7).

p. 2

Legal principles established

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  • An order made on review shall not be subject to further review under rule 32(7) of the Court's rules
  • A review application that raises the selfsame issues as a prior application, even if couched as a review, is barred and without merit

Court orders

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  1. 1.The Notice of Motion dated 6th February 2014 is dismissed with costs
  2. 2.It is so ordered

Authorities

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Legislation

  • Rules of the Industrial Courtrule 32(1)(d)(e)
  • Rules of the Industrial Courtrule 32(7)

Cases cited (3)

  • Geoffrey Mundia Kabethi v. Peter Wanjohi Njogu & Anor
    (2013) eKLR
  • Republic v. Public Procurement Administrative Review Board ex parte Olive Telecommunication
    (2014) eKLR
  • Akamba Public Road Service Vehicles & Another v Joseph Salima
    (2015) eKLR
Jurisdiction invoked
Rule 32(1)(d)(e) and rule 32(7) of the rules of the Court invoked by the parties for review of an award

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 Electrical Trade and Allied Workers Union v Kenya Power and Lighting Company Ltd [2016] KEELRC 1500 (KLR)", Case Analysis (2016). Not stated in the judgment extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1500/eng@2016-03-18

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