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ELRCPartially AllowedCause No. 421 of 2017· [2021] KEELRC 194 (KLR)

Kenya Chemicals and Allied Workers Union v Milly Glass Works Limited [2021] KEELRC 194 (KLR)

Employment and Labour Relations Court
10 December 2021
2,717 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This judgment of the Employment and Labour Relations Court at Nairobi, delivered by Maureen Onyango, J on 10th December 2021, disposed of two competing applications arising from a long-running collective bargaining dispute under Cause No. 421 of 2017. The parties had a recognition agreement dated 16th December 2013; after negotiations failed on two clauses (hours of work and effective date), the Court in a judgment of 8th February 2019 fixed working hours at 48 per week and the effective date at 1st January 2019. The Respondent refused to sign the CBA, and by a ruling of 1st December 2020 the Court directed it to sign within 30 days, failing which the Claimant could invoke Section 20 of the Employment and Labour Relations Act. The Respondent again refused to sign. It filed an application dated 23rd December 2020 seeking review and setting aside of the 2019 judgment and the 2020 ruling, alternatively stay pending intended appeal, pleading newly discovered facts about reduced union membership and an application to the National Labour Board for revocation of the recognition agreement. The Court held these grounds were res judicata, having been raised and rejected in the 1st December 2020 ruling, and barred by issue estoppel; further, review is unavailable to a party that has lodged a notice of appeal, applying Feisal Mohamed Ali. The Respondent's application was dismissed. The Claimant's application dated 18th January 2021 under Section 20 was allowed to the extent that the Managing Director, Mohamed Rashid, was directed to appear in Court on 1st February 2022 to show cause why he should not be punished for disobedience of the orders requiring signature of the CBA. No costs order was made.

Key legal issues

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01

Whether the Respondent's application for review satisfies Rule 33 of the ELRC (Procedure) Rules 2016

Holding

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

Reasoning

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.

p. 3
02

Whether lodging a notice of appeal bars an application for review

Holding

Yes - a lodged notice of appeal constitutes an intended appeal, and review is only available where no appeal is preferred

Reasoning

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.

p. 4
03

Whether the Claimant is entitled to enforcement orders for non-compliance with the order to sign the CBA

Holding

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

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.The Respondent's application dated 23rd December 2020 seeking review and stay is dismissed
  2. 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

Authorities

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Legislation

  • Employment and Labour Relations Court (Procedure) Rules 2016Rule 33
  • Employment and Labour Relations ActSection 20
  • Labour Relations ActSection 59
  • Employment ActSection 26(2)
  • Court of Appeal Rules, 2010Rules 2, 5(1), 5(2)(a), 5(2)(b)
  • Constitution of KenyaArticles 159(2)(d), 48, 164(3)
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B

Cases cited (1)

  • Feisal Mohamed Ali Alias Feisal Shahbal v Republic
    [2015] eKLR
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

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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 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.