Brava Food Industries Limited v Bakery, Confectionary, Food Manufacturing and Allied Workers’ Union [Kenya] (Miscellaneous Application E060 of 2022) [2023] KEELRC 46 (KLR)
The bottom line
#A Kenyan court struck out a union's application, confirming you cannot ask a subordinate body to overturn a court judgment—only the court can, through appeal or review.
What this practically means
#Executive summary
#Key legal issues
#Whether the preliminary objection met the legal threshold of a pure point of law
Yes. The objection was on jurisdiction, a matter of law, and was properly raised notwithstanding the Applicant's argument that res judicata cannot be raised by preliminary objection.
The court adopted the Mukisa Biscuits and Oraro v Mbaja thresholds: a pure point of law, not dependent on disputed facts or judicial discretion. It held that where the ingredients of res judicata are undisputed, it is an abdication of the court's duty to decline the plea merely because it was raised by preliminary objection rather than by notice of motion.
Whether the application was properly instituted before the court
No. The application flowed from proceedings before an improper forum and the court lacked jurisdiction over it.
The application before the National Labour Board seeking revocation of the recognition agreement was, in substance, an attempt to vary or quash the judgment in ELRC Cause No. 431 of 2019, which had found that the simple majority threshold under section 54 of the Employment Act was met and directed execution of the agreement. The proper remedy was review or appeal, not revocation before a subordinate body.
Whether a miscellaneous application must be anchored on a suit
Not necessarily. The court disagreed with the Respondent that commencement outside the modes in the Rules was fatal, holding some matters may justifiably originate by miscellaneous application, but this did not cure the want of jurisdiction.
The court held the Rules do not contemplate that every matter be commenced only via the modes provided therein; where a matter's nature does not fit any mode, a miscellaneous application is permissible, agreeing with Abdi Abdurahi Somo v Ben Chikamai. However, this finding did not change the conclusion that the matter was improperly instituted for the earlier jurisdictional reasons.
Legal principles established
#- A party aggrieved by a judgment on a recognition agreement cannot seek its revocation before the National Labour Board, an entity subordinate to the court; the proper forum is an application for review or an appeal
- A court lacks jurisdiction to entertain an application flowing from proceedings pending before an improper forum
- The plea of res judicata may be raised by preliminary objection or notice of motion depending on the circumstances of each case
- Not every matter before the ELRC must be commenced via the modes provided in the Procedure Rules; some matters of a nature not fitting those modes may be initiated by miscellaneous application
Court orders
#- 1.Preliminary objection sustained
- 2.The Applicant's Notice of Motion dated April 26, 2022 struck out with costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Court Act and the Employment & Labour Relations Court (Procedure) Rules, 2016 (matter declined for want of jurisdiction)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Brava Food Industries Limited v Bakery, Confectionary, Food Manufacturing and Allied Workers’ Union [Kenya] (Miscellaneous Application E060 of 2022) [2023] KEELRC 46 (KLR)", Case Analysis (2023). ELRC Miscellaneous Application (Nairobi), Notice of Motion dated April 26, 2022 (court number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/46/eng@2023-01-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.