Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCDismissedNotice of Motion dated 4th May, 2020 (in a claim filed 12th October 2016)· [2020] KEELRC 260 (KLR)

Kenya Engineering Workers Union v Steel Structures Limited; Kenya Building, Construction, Timber and Furniture Industries Employees Union (Interested Party) [2020] KEELRC 260 (KLR)

Employment and Labour Relations Court
6 November 2020
MOMaureen Onyango
1,932 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

#

Kenya's Employment Court dismissed a union's bid to review a lost judgment, confirming that complaints about how evidence was weighed belong in an appeal, not a review.

What this practically means

#

Executive summary

#
The Applicant union, Bakers Union of Kenya, filed a Notice of Motion dated 4th May 2020 seeking review of the court's judgment of 23rd April 2020, which had dismissed its claim against the Respondent employer. The Applicant argued that the court failed to consider the sworn affidavit of John Thiong'o, authorised by 249 employees who allegedly withdrew from the Interested Party union, and that remitting union dues to the Interested Party would breach members' freedom of association. The Respondent opposed, contending the application was in the nature of an appeal and that the Thiong'o affidavit was already on record. The Interested Party similarly argued there was no new evidence, that the court was functus officio, and that it had recruited nearly all unionisable employees. In a judgment delivered on 6th November 2020, Maureen Onyango J framed a single issue: whether the review application had merit. Applying Rule 33(1) of the ELRC (Procedure) Rules, 2016, the court held that the Thiong'o affidavit was not newly discovered evidence, noting the judgment expressly recorded that resignation letters had been considered. The court further held, citing Nasibwa Wakenya Moses and Francis Origo, that 'any other sufficient reason' must be ejusdem generis with the enumerated grounds, and that an erroneous conclusion on evidence is a ground for appeal, not review. The application was dismissed with no orders for costs.

Key legal issues

#
01

Whether the affidavit of John Thiong'o amounted to discovery of new and important matter warranting review

Holding

No - the affidavit was on record before judgment and the court's judgment shows it was considered

Reasoning

The court noted the affidavit sworn by John Thiong'o was already before it at hearing; the judgment expressly recorded that the Claimant produced resignation letters showing withdrawal from the Interested Party, demonstrating the evidence was taken into account and was not a new discovery.

p. 3
02

Whether the application satisfied 'any other sufficient reason' under Rule 33(1)(d)

Holding

No - complaints about the court's treatment of evidence are grounds for appeal, not review

Reasoning

The court applied the ejusdem generis principle: 'sufficient reason' must be analogous to discovery of new matter or error on the face of the record. The Applicant's grievance was that the court failed to consider certain evidence, which is at most an erroneous conclusion of evidence and therefore a matter for appeal.

p. 3

Legal principles established

#
  • An application for review on 'any other sufficient reason' must be on grounds analogous or ejusdem generis to the other grounds in the review rule
  • An erroneous conclusion of law or evidence is a ground for appeal, not review

Court orders

#
  1. 1.The Applicant's notice of motion dated 4th May 2020 seeking review of the judgment delivered on 23rd April 2020 is dismissed
  2. 2.No orders for costs

Authorities

#

Legislation

  • Labour Relations ActSections 48, 54
  • Employment ActSection 19
  • Employment and Labour Relations Court ActSection 16
  • Employment and Labour Relations Court (Procedure) Rules, 2016Rule 33(1)
  • Civil Procedure RulesOrder 21 Rule 1; Order 45 Rule 1
  • Civil Procedure Act (Chapter 21, Laws of Kenya)Section 1B
  • Constitution of KenyaArticles 48, 159(2)(d)

Cases cited (9)

  • Amalgamated Union of Kenya Metal Workers v Dock Workers Union & another
    [2019] eKLR
  • Fairmont the Norfolk v The Industrial Court of Kenya
    Petition 405 of 2009
  • Munir Abubakar Masoud & Others v Registrar of Trade Unions Banking, Insurance and Finance (Interested Party)
    [2020] eKLR
  • Francis Njoroge v Stephen Maina Kamore
    [2018] eKLR
  • Muyondi v Industrial and Commercial Development Corporation & another
    [2006] 1 EA 243
  • Mary Wambui Njuguna v William Ole Nabala & 9 Others
    [2018] eKLR
  • Nasibwa Wakenya Moses v University of Nairobi & another
    [2019] eKLR
  • Sadar Mohamed vs Charan Signh and Another
  • Francis Origo & another v Jacob Kumali Mungala
    [2005] eKLR
Jurisdiction invoked
Section 16 of the Employment and Labour Relations Court Act and Rule 33 of the Employment and Labour Relations Court (Procedure) Rules, 2016

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Kenya Engineering Workers Union v Steel Structures Limited; Kenya Building, Construction, Timber and Furniture Industries Employees Union (Interested Party) [2020] KEELRC 260 (KLR)", Case Analysis (2020). Notice of Motion dated 4th May, 2020 (in a claim filed 12th October 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/260/eng@2020-11-06

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