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ELRCDismissedNot stated in judgment (Notice of Motion dated 8th February 2021)· [2021] KEELRC 1346 (KLR)

Kenya Aviation Workers Union v AGS Worldwide Movers Limited [2021] KEELRC 1346 (KLR)

Employment and Labour Relations Court
2 June 2021
1,889 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

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The Employment Court dismissed a union's attempt to revive its case through review, confirming that unhappy parties must appeal, not seek review.

What this practically means

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Executive summary

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The Claimant union, which had sued the Respondent seeking a recognition agreement after claiming a simple majority of its unionisable members, filed a Notice of Motion dated 8th February 2021 seeking review, variation or setting aside of the Court's Ruling of 16th December 2020 (which had struck out the suit for lacking a cause of action), together with a stay of execution. The Applicant argued, relying on Rule 33(1)(b) of the ELRC (Procedure) Rules 2016, that the Court's failure to consider a conciliator's report dated 5th October 2020, filed before the Ruling, was an error apparent on the face of the record, and that the 54-day delay in filing the application was not unreasonable. It relied on authorities including Philip Muoki Kilonzo v Simon Makau Ngui and Julie Kariuki v Dyer & Blair Investment Bank. The Respondent, through its Human Resource Officer Jacob Mulatya, opposed, contending that the report was filed only after the Court was seized of the dispute, that a conciliator's findings are not binding on the Court, and that the application was in substance an appeal against the Court's own decision. In a brief ruling delivered on 2nd June 2021, Nzioki wa Makau J agreed with the Respondent, holding that the grounds for review under Rule 33 were not what prompted the application, that the complaint about non-consideration of the report amounted to asking the Court to sit on appeal over its own decision, and that the correct remedy was an appeal to the Court of Appeal. The motion was dismissed with costs to the Respondent.

Key legal issues

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01

Whether omission to consider the conciliator's report amounted to an error apparent on the face of the record under Rule 33(1)(b)

Holding

The Court held that the application did not meet the Rule 33 grounds; the complaint was not a reviewable error but a disagreement with the outcome amounting to an attempted appeal.

Reasoning

The Applicant argued that the Court's failure to consider the conciliator's report was an erroneous omission of critical evidence warranting review. The Respondent countered that the report was filed after the Court was seized of the dispute, that a conciliator's opinion is not binding unless the court refers the matter back, and that the application was couched as an appeal against the Court's own ruling. The Court agreed with the Respondent that Rule 33 grounds were not engaged.

p. 3
02

Correct procedural avenue where a party is aggrieved by a ruling

Holding

The proper remedy was an appeal to the Court of Appeal, not review.

Reasoning

The Court reasoned that a grievance about the manner in which a decision was reached, namely the alleged failure to consider evidence, is an attack on the correctness of the decision itself. Such a complaint must go up on appeal, since a judge cannot review his own decision on grounds that effectively seek re-argument of the merits.

p. 3

Legal principles established

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  • A party aggrieved by a first-instance ruling should prefer an appeal to the Court of Appeal; a court cannot sit on appeal over its own decision, and dissatisfaction with a ruling's reasoning is not a ground for review under Rule 33.

Court orders

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  1. 1.The Notice of Motion dated 8th February 2021 seeking review of the Ruling of 16th December 2020 is dismissed
  2. 2.Costs of the application awarded to the Respondent
Jurisdiction invoked
Inherent review jurisdiction under 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 Aviation Workers Union v AGS Worldwide Movers Limited [2021] KEELRC 1346 (KLR)", Case Analysis (2021). Not stated in judgment (Notice of Motion dated 8th February 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1346/eng@2021-06-02

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