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ELRCDismissedCause No 25 of 2016· [2018] KEELRC 37 (KLR)

Bakery Confectionary Food Manufucturing & Allied Workers Union (Kenya) v Big Bite & Confectioners Limited [2018] KEELRC 37 (KLR)

Employment and Labour Relations Court
14 June 2018
2,589 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employment court refused to reopen a union's dismissed case, confirming that missing hearings has real consequences.

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 14th February 2018 under section 16 of the Employment and Labour Relations Court Act and Rules 32 and 33 of the ELRC (Procedure) Rules, 2016, seeking stay of execution of a decree and warrants arising from a ruling of 20th July 2017, review and setting aside of that ruling, and directions for a fresh hearing. The union argued that its suit was dismissed without a hearing, violating natural justice and Article 50(1) of the Constitution, and that service by registered post was improper. The respondent, through David Teti, countered that the union was served and repeatedly absent on hearing dates, and that the application was an afterthought. The court framed three issues: stay of execution, review/setting aside of the ruling, and a fresh hearing. It traced the proceedings from filing on 2nd February 2016, the directions of 23rd March 2016 for balloting by the County Labour Officer on recognition, and the union's absences. The court held that the right to be heard was secured through the balloting directions; the substantive recognition dispute was resolved on the CLO report; no new facts, error apparent on the face of the record, clarification or sufficient cause justified review under Rule 33; and any post-ruling change in recognition status could not reopen the concluded claim. The application was dismissed with costs to the respondent.

Key legal issues

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01

Right to fair hearing under Article 50(1)

Holding

The claimant's right to be heard was secured through the directions of 23rd March 2016 for balloting and subsequent mentions; the dismissal did not violate natural justice

Reasoning

The court found the claimant attended mentions and had opportunity through the balloting exercise. The substantive recognition issue was isolated, addressed on the facts of the CLO report, and the claimant never appealed or sought review of those directions. Absence on hearing dates did not create an error on the face of the record.

p. 3
02

Whether review of the 20th July 2017 ruling was warranted

Holding

No review; no new facts, no error apparent, no clarification needed, no sufficient cause

Reasoning

The grounds relied on were all matters within the claimant's knowledge at the time of the ruling. The review jurisdiction under Rule 33 was therefore not engaged and the application was an attempt to reopen a concluded suit.

p. 3
03

Stay of execution

Holding

Refused; the decree followed a lawful ruling and no basis for stay was shown

Reasoning

Execution was a consequence of the ruling dismissing the claim with costs. Since the challenge to the ruling failed, the foundation for the stay fell away.

p. 3

Legal principles established

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  • A review may only be granted where there is a new fact or matter, an error apparent on the face of the record, a need for clarification, or sufficient cause
  • An error apparent on the face of the record must be self-evident and not require elaborate argument
  • Under the ELRC Procedure Rules the court may isolate issues in dispute and determine a suit even where a party is absent

Court orders

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  1. 1.Application dated 14th February 2018 found without merit
  2. 2.Application dismissed with costs to the respondent

Authorities

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Legislation

  • Employment and Labour Relations Court Actsection 16
  • Employment and Labour Relations Court (Procedure) Rules, 2016Rules 4, 12, 13, 21, 22, 25, 32, 33
  • Civil Procedure RulesOrder 5 Rule 3; Rules 22 and 52
  • Constitution of Kenya, 2010Article 50(1)
  • Labour Relations Act, 2007sections 48 and 54

Cases cited (4)

  • Savings & Loan Kenya Ltd versus Odongo
    [1987] eKLR
  • JMK versus MWM & Another
    [2015] eKLR
  • Josphat Muthui Muli versus Ezetec Ltd
    [2014] eKLR
  • National Bank Ltd versus Ndungu
    Civil Application No. 211 of 1996
Jurisdiction invoked
Section 16 of the Employment and Labour Relations Court Act, 2014 and Rules 32, 33(1)(a), (b) and (d), (3), (4) and (5) of the Employment and Labour Relations Court (Procedure) Rules, 2016

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, "Bakery Confectionary Food Manufucturing & Allied Workers Union (Kenya) v Big Bite & Confectioners Limited [2018] KEELRC 37 (KLR)", Case Analysis (2018). Cause No 25 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/37/eng@2018-06-14

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