Kenya Union of Commercial Food and Allied Workers Union v Kapa Oil Refineries Limited [2018] KEELRC 674 (KLR)

The court accepted that the respondent had earlier challenged the award through judicial review proceedings which were dismissed. However, it held that judicial review and review of a decree are distinct processes: a review is not another suit but an application to amend or set aside a decision. Accordingly, the dismissal of the judicial review application could not found a plea of res judicata against the review application.

The court applied Rule 33(1) of the ELRC Rules and the Origo v Mungala principles. The application was filed 7 days after the decree, so there was no delay. The respondent's reason - that reinstatement was impractical and would require training the 106 grievants afresh - was held to be sufficiently analogous to the enumerated grounds to constitute 'any other sufficient reason' warranting review.

The award was made on 22nd December 2004 under the repealed Trade Disputes Act, before the Employment Act No. 11 of 2007 came into force. Relying on Kenya Ports Authority v Odongo and the Supreme Court's non-retroactivity principle, the court held there is no express legislative intent for retrospective application, and paragraph 2(4) of the Fifth Schedule of the Labour Relations Act confirms the repealed Act governs pre-commencement disputes.

Balancing the equities, the court noted the organisation had changed, labour had been outsourced to third parties, and retraining would be required. However, because the delay was occasioned by lengthy litigation, it would prejudice the grievants to deprive them of the award. The court therefore exercised its discretion to review the decree by substituting reinstatement with the compensation package already provided in the alternative Order 4 of the award.