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ELRCAllowedApplication dated 2nd February 2023 (in ELRC Cause re: Mediation Settlement Agreement dated 19th October 2021)· [2023] KEELRC 553 (KLR)

Dock Workers Union v Kenya Ports Authority (Cause 755 of 2015) [2023] KEELRC 553 (KLR)

Employment and Labour Relations Court
2 March 2023
2,235 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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The Employment Court in Mombasa confirmed it can review its own orders, and struck out an order that went beyond what Kenya Ports Authority and its employee had actually agreed in mediation.

What this practically means

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Executive summary

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This ruling of the Employment and Labour Relations Court at Mombasa, delivered by Agnes Kitiku Nzei, Judge, on 2nd March 2023, determines an unopposed Notice of Motion dated 2nd February 2023 by Kenya Ports Authority seeking review and setting aside of order no. (b) in the Court's Ruling of 19th January 2023. That earlier Ruling had adopted a Mediation Settlement Agreement dated 19th October 2021 as an order of the Court without variation, and had further granted the parties liberty to move the Court for determination of any pleaded claim or relief not settled by the Agreement. The Authority contended that the settlement was a full and final settlement of the entire dispute, and that order no. (b) was neither part of the Settlement Agreement nor sought in the Claimant's application of 26th July 2022, which had in fact sought a variation of the Agreement that the Court declined to make. The Claimant filed no response; the Court noted that submissions are not pleadings and cannot substitute for a response. The Court framed two issues: whether it has jurisdiction to review its own orders, and whether review was deserved. Relying on Rule 33 of the ELRC (Procedure) Rules 2016 and Section 80 of the Civil Procedure Act, the Court held that it can review and set aside its own orders, noting that no appeal lies against orders arising from a mediation settlement under Rule 36(3) of the Court Annexed Mediation Rules 2022. Finding that order no. (b) was not alien to the application but went beyond the Settlement Agreement, the Court allowed the Motion, set aside order no. (b), and ordered each party to bear its own costs. The application was brought with leave deemed granted under Rule 39 of the Mediation Rules.

Key legal issues

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01

Jurisdiction of the ELRC to review its own orders

Holding

The Court has jurisdiction to review and set aside its own orders pursuant to Rule 33 of the Employment and Labour Relations Court (Procedure) Rules 2016, which permits a person aggrieved by a decree or order from which no appeal is preferred or allowed to apply for review on grounds including error apparent on the face of the record.

Reasoning

Rule 33(1) of the ELRC (Procedure) Rules 2016 mirrors Order 45 of the Civil Procedure Rules and permits review where there is discovery of new matter, error apparent on the face of the record, need for clarification, or any other sufficient reason. Since no appeal lies against orders arising from a mediation settlement under Rule 36(3) of the Court Annexed Mediation Rules 2022, review is the only avenue available to an aggrieved party. The Court accordingly held that it can review and set aside its own orders.

p. 4
02

Whether the review relief sought was deserved

Holding

The review was granted because Order no. (b) of the 19th January 2023 Ruling went beyond the terms of the Mediation Settlement Agreement, granting relief in terms of a variation that the Court had expressly declined to make, thereby constituting an error apparent on the face of the record.

Reasoning

The Respondent demonstrated that Order no. (b) - permitting parties to move the Court on claims not settled by the Mediation Settlement Agreement - was not part of the Settlement Agreement itself and had not been sought in the Claimant's application dated 26th July 2022, which instead sought adoption of the Agreement with a variation that the Court declined to make. Granting a liberty-to-apply order not sought and not contained in the Agreement was an error apparent on the face of the record, warranting review and setting aside of that order.

p. 5

Legal principles established

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  • The Employment and Labour Relations Court has jurisdiction to review and set aside its own orders under Rule 33 of the ELRC (Procedure) Rules 2016.
  • Written submissions are not pleadings and cannot substitute for a formal response to an application.
  • No appeal lies against a decree or order arising from a mediation settlement agreement; the only remedy is an application for setting aside under Rule 39(3) of the Court Annexed Mediation Rules 2022.

Court orders

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  1. 1.The Notice of Motion dated 2nd February 2023 is deemed to have been filed with leave of the Court, and the Chamber Summons evenly dated has served its purpose and is spent
  2. 2.Order no. (b) in the Court's Ruling delivered on 19th January 2023 is reviewed and set aside
  3. 3.Each party will bear its own costs of the application

Authorities

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Legislation

  • Civil Procedure ActSection 80
  • Employment and Labour Relations Court ActSection 12
  • Civil Procedure RulesOrder 45 Rule 1
  • Civil Procedure (Court Annexed Mediation) RulesRules 17(9), 32(1), 35(1), 36(3), 39(1), 39(3), 39(5)
  • Employment and Labour Relations Court (Procedure) RulesRules 17(9), 33
  • Practice Directions on Court Annexed Mediation (Amendment)2018 Amendment (prescribed Form 8)
Jurisdiction invoked
Section 80 of the Civil Procedure Act, Section 12 of the Employment and Labour Relations Court Act, Order 45 Rule 1 of the Civil Procedure Rules, and Rule 33 of the Employment and Labour Relations Court (Procedure) Rules 2016 (review jurisdiction); Rule 39 of the Civil Procedure (Court Annexed Mediation) Rules 2022

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, "Dock Workers Union v Kenya Ports Authority (Cause 755 of 2015) [2023] KEELRC 553 (KLR)", Case Analysis (2023). Application dated 2nd February 2023 (in ELRC Cause re: Mediation Settlement Agreement dated 19th October 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/553/eng@2023-03-02

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