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ELRCDismissedCause No 41 of 2006· [2021] KEELRC 1242 (KLR)

Kenya Engineering Workers Union v Rolmil Kenya Limited; Hebros Auctioneers (Respondent); Transafrica Motors Limited (Objector/Applicant) [2021] KEELRC 1242 (KLR)

Employment and Labour Relations Court
16 July 2021
2,606 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to accept new ownership documents filed after losing, ruling parties must present all evidence the first time.

What this practically means

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Executive summary

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This was an application by the Objector, Trans Africa Motors Limited, seeking review and setting aside of a ruling delivered on 15th April 2020 by Wasilwa J. in objection proceedings arising from execution of a decree in an employment dispute. The earlier ruling had released five named motor vehicles to the Objector but declined to lift the proclamation of 10 generators, 2 forklifts, 2 Sonalika tractors, 1 safe, a reception desk and 6 reception chairs, finding ownership unproved. The Objector now sought to rely on import documents, invoices and payment receipts which it said were unavailable at the time of filing the objection because they were in the custody of a Finance Officer on annual leave. The Claimant/Decree Holder opposed, contending the goods were lawfully proclaimed in the Judgment Debtor's premises and that the application was an attempt to derail payment of nearly 20-year-old dues to ex-employees. Onyango J. framed two issues: whether the application met the threshold for review and whether the Applicant was entitled to the orders sought. The court, invoking Section 16 of the Employment and Labour Relations Court Act and Rule 33 of the ELRC (Procedure) Rules, held that the documents were not new evidence, that they were within the Applicant's knowledge and could have been produced with due diligence, and that the Applicant had not strictly proved the grounds for review. The court found the application was an attempt to reopen a concluded matter, contrary to res judicata, and dismissed it with costs to the Decree Holder.

Key legal issues

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01

Whether the imported invoices and payment receipts constitute new and important matter for review under Rule 33

Holding

They do not; the evidence was available to the Applicant at the time of the ruling and its non-production was due to the Applicant's own remissness

Reasoning

The Applicant explained the non-production by the Finance Officer's annual leave, but did not name the officer, prove the leave, or show the officer could not be recalled to avail the documents. Under Order 45/Rule 33 the new evidence must not have been within the applicant's knowledge and must not have been producible with due diligence. That strict standard was not met, so the review ground failed.

p. 4
02

Whether the review application was an attempt to reopen a concluded matter

Holding

Yes; the court treated it as an attempt to fill evidentiary gaps after an adverse ruling, contrary to the principle of res judicata

Reasoning

The ruling of 15th April 2020 had conclusively declined to lift the proclamation for want of proof of ownership. A party who loses cannot procure further evidence to change the court's mind. Allowing it would condone producing evidence in instalments and sealing loopholes, a practice courts must not countenance.

p. 4

Legal principles established

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  • Parties must produce all their evidence at the hearing and cannot patch up gaps by producing fresh evidence on review; review on the ground of discovery of new evidence requires strict proof of due diligence

Court orders

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  1. 1.The application dated 16th December 2020 is dismissed
  2. 2.Costs of the application awarded to the Decree Holder

Authorities

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Legislation

  • Civil Procedure RulesOrder 45 Rule 1
  • Employment and Labour Relations Court ActSection 16
  • Employment and Labour Relations Court (Procedure) RulesRule 33
  • Civil Procedure RulesOrder 21 Rule 1
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Civil Procedure Act (Chapter 21, Laws of Kenya)Section 1B

Cases cited (2)

  • Charles Kimaita Mwithimbu & Another v Edward Mutua M'Mwithiga
    [2016] eKLR
  • D.J. LOWE & COMPANY LTD v BANQUE INDOSUEZ
    CIVIL APPL. NAI. 217/98 (UR)
Jurisdiction invoked
Section 16 of the Employment and Labour Relations Court Act and Rule 33 of the Employment and Labour Relations Court (Procedure) Rules (review of the court's own orders)

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 Engineering Workers Union v Rolmil Kenya Limited; Hebros Auctioneers (Respondent); Transafrica Motors Limited (Objector/Applicant) [2021] KEELRC 1242 (KLR)", Case Analysis (2021). Cause No 41 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1242/eng@2021-07-16

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