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ELRCDismissedCause No. E003 of 2022· [2023] KEELRC 2334 (KLR)
Kenya Engineering Workers Union v Farm Engineering Industries Limited (Cause E003 of 2022) [2023] KEELRC 2334 (KLR)
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·~4 min to read original · ~4 min briefThe bottom line
#You cannot ask the same court to review a judgment you have already appealed — pick one route, and bring the evidence you need the first time.
What this practically means
#Executive summary
#The claimant/applicant moved the court by a motion dated May 9, 2023, under section 16 of the Employment and Labour Relations Court Act and Rule 33(1) of the ELRC (Procedure) Rules, seeking review of the judgment delivered on April 20, 2023 so as to award service pay/gratuity under clause 21 of the CBA, which allegedly entitled employees with 3–5 years' service to one month's salary in lieu of notice and those with 5–10 years to 19 days' pay per completed year. No affidavit supported the motion. The respondent opposed via a replying affidavit and preliminary objection, arguing violation of Rule 17(8), absence of any demonstrated error or sufficient reason, an attempt to make the court sit on appeal over its own decision when the CBA had never been produced in evidence, and that an appeal against the same judgment was already pending before the Court of Appeal. The court framed a single issue: whether grounds for review were established. It noted its prior finding that neither the CBA nor the grievant's appointment letter was produced in evidence, that the CBA remained unproduced so could not qualify as new and important matter, and that the uncontroverted fact of a lodged appeal disentitled the applicant to review. The motion was dismissed with no orders on costs on October 5, 2023 at Kisumu.
Key legal issues
#01
Whether the applicant established grounds for review under Rule 33(1)
Holding
The application failed; no new evidence was produced, no error apparent on the face of the record was shown, and the pendency of an appeal disentitled the applicant to review
Reasoning
The court had expressly declined the gratuity claim because the CBA and the grievant's appointment letter were not produced in evidence. The CBA was still not produced, so there was no new and important matter. Additionally, the applicant's uncontroverted appeal against the same judgment barred review.
p. 3
Legal principles established
#- Review is unavailable to a party who has lodged an appeal against the same judgment
Court orders
#- 1.The applicant's application for review is dismissed
- 2.No orders on costs
- Jurisdiction invoked
- Section 16 of the Employment and Labour Relations Court Act and Rule 33(1) of the Employment and Labour Relations Court (Procedure) Rules, 2016
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Engineering Workers Union v Farm Engineering Industries Limited (Cause E003 of 2022) [2023] KEELRC 2334 (KLR)", Case Analysis (2023). Cause No. E003 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2334/eng@2023-10-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.