Kenya Chemicals and Allied Workers Union v Milly Glass Works Limited [2021] KEELRC 194 (KLR)
The bottom line
#A Kenyan employer must explain to court why its managing director shouldn't be punished for refusing to sign a collective bargaining agreement ordered two years ago.
What this practically means
#Executive summary
#Key legal issues
#Whether the Respondent's application for review satisfies Rule 33 of the ELRC (Procedure) Rules 2016
The application fails; the alleged new matters were already considered in the ruling of 1st December 2020 and review is barred where an appeal has been lodged
The Respondent's pleaded grounds - reduced union membership, application to the National Labour Board for revocation of the recognition agreement, and the risk that a revoked recognition agreement could not support the CBA - were all considered and rejected in the Court's ruling of 1st December 2020. Re-raising them constitutes issue estoppel. Further, Rule 33 applies to decrees from which no appeal is allowed or preferred, and the Respondent had filed a notice of appeal dated 7th December 2020 which it had not withdrawn.
Whether lodging a notice of appeal bars an application for review
Yes - a lodged notice of appeal constitutes an intended appeal, and review is only available where no appeal is preferred
Relying on the Court of Appeal's decision in Feisal Mohamed Ali, the Court held that lodging a notice of appeal evinces intention to invoke appellate jurisdiction and constitutes an intended appeal under Rule 2 of the Court of Appeal Rules. Since Rule 33 of the ELRC Procedure Rules applies to decrees 'from which no appeal is allowed but from which no appeal is preferred', a party who has filed an undischarged notice of appeal cannot simultaneously seek review.
Whether the Claimant is entitled to enforcement orders for non-compliance with the order to sign the CBA
Yes - the Respondent has not signed the CBA within the 30 days allowed, and the Claimant may move under Section 20 of the Employment and Labour Relations Act
The ruling of 1st December 2020 directed the Respondent to sign the CBA within 30 days and expressly reserved to the Claimant liberty to move the Court under Section 20 of the Employment and Labour Relations Act should the Respondent default. The Respondent again declined to sign the CBA forwarded to it on 8th December 2020, and the Managing Director, Mohamed Rashid, must accordingly appear to show cause why he should not be punished for disobedience of the Court's orders.
Legal principles established
#- An application for review is not available to a party who intends or has lodged an appeal by filing a notice of appeal
- Grounds already raised and determined cannot be re-litigated disguised as an application for review
Court orders
#- 1.The Respondent's application dated 23rd December 2020 seeking review and stay is dismissed
- 2.MR. MOHAMED RASHID is directed to appear in Court on 1st February 2022 to show cause why he should not be punished for disobedience of this Court's orders requiring him to sign the CBA within 30 days from 1st December 2020
- Jurisdiction invoked
- Section 20 of the Employment and Labour Relations Act; 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 Chemicals and Allied Workers Union v Milly Glass Works Limited [2021] KEELRC 194 (KLR)", Case Analysis (2021). Cause No. 421 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/194/eng@2021-12-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.