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ELRCDismissedNot stated in the judgment

Kenya Aviation Workers Union v Kenya Airports Authority (Petition E088 of 2021) [2023] KEELRC 2655 (KLR)

Employment and Labour Relations Court
27 October 2023
ANAbuodha Jorum Nelson
1,415 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court dismissed an employer's bid to overturn a discrimination ruling, confirming you cannot re-run your case with documents you always had.

What this practically means

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Executive summary

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The Respondent (employer) applied under section 16 of the Employment and Labour Relations Court Act, 2011 and Rules 17 and 33 of the ELRC (Procedure) Rules, 2016 for review of the judgment delivered on 6th June 2022 by Lady Justice M. Mbaru, which had declared the recruitment of security wardens in 2018/2019 at job group S2 discriminatory, unlawful and an unfair labour practice, and entitled them to equal remuneration for work of equal value with the 2015/2016 recruits. The Respondent argued it had inadvertently failed to place before the court the job requirements and qualifications for the two recruitment exercises, which it said were distinctly different, and sought a declaration that there was no discrimination. The Petitioner opposed, contending the documents relied on (letters, contracts and internal memos of 2015 and 2018) were authored by and in the custody of the Respondent throughout the litigation, so no new matter was discovered, and the application was an afterthought and abuse of process intended to delay compliance with the judgment. The court, Abuodha Jorum Nelson J, held that the documents existed since 2015 and 2018 and were within the Applicant's custody and knowledge, that the Applicant was giving the court piecemeal evidence, and that 'sufficient reason' under Rule 33 must be analogous to discovery of new matter or error on the face of the record. The Applicant also failed to show the documents would alter the discrimination finding. The application was dismissed with costs on 27th October 2023.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Respondent's application met the grounds for review under Rule 33 of the Employment and Labour Relations Court (Procedure) Rules, 2016, particularly discovery of new and important matter or evidence and sufficient reason

Key legal issues

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01

Whether the Applicant discovered new and important matter or evidence under Rule 33(1)(a)

Holding

No new evidence was discovered; the documents were in existence since 2015 and 2018 and were in the Applicant's custody and knowledge, so they could have been produced before judgment.

Reasoning

The Applicant admitted it did not avail the job requirements for the two recruitment periods during the hearing. The court found the documents existed since 2015 and 2018 and were authored and held by the Respondent itself, with no explanation why they were not produced as defence. Producing them post-judgment amounted to litigating in piecemeal.

p. 3
02

Whether there was any other sufficient reason under Rule 33(1)(d) to warrant review

Holding

Sufficient reason must be analogous to the other enumerated grounds; the Applicant's assertion that the recruitments were different did not qualify and would not alter the discrimination finding.

Reasoning

Relying on precedent, the court held that 'sufficient reason' means grounds analogous to error on the face of the record or discovery of new matter. The evidence was not new, and the Applicant did not illustrate how the documents would alter the judgment that the 2018 security wardens were discriminated against.

Legal principles established

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  • Sufficient reason for review under Rule 33 must be analogous to discovery of new evidence or error apparent on the face of the record; evidence that was in a party's custody and knowledge before judgment is not new matter.

Court orders

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  1. 1.The Respondent's application for review dated 6th July 2022 is dismissed with costs
  2. 2.It is so ordered

The bench

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One judgment of the whole court — no separate or dissenting opinions.

AN
majority

Wrote the judgment

Jurisdiction invoked
Section 16 of the Employment and Labour Relations Court Act, 2011 and Rules 17 and 33(1)(a), (d) and (2) of the Employment and Labour Relations Court (Procedure) Rules, 2016

Relief refused

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Review of the judgment delivered on 6th June 2022 and declaration that there was no discrimination between the two sets of recruited security wardens

The documents relied on were in the Applicant's custody and knowledge long before judgment and no sufficient reason or discovery of new matter was demonstrated

p. 3

Costs

The application is dismissed with costs to the Petitioner.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The application is therefore found without merit and is hereby dismissed with costs
p. 3Disposition - dismissal of review application
The Court therefore takes the view that the Applicant is giving the court piecemeal evidence.
p. 3Litigating in installments / piecemeal evidence
the sufficient reason ought to relate with discovery of new evidence or error on the face of record
Meaning of sufficient reason under Rule 33(1)(d)
In this particular case the evidence was not new but was within the custody and knowledge of the respondent/applicant.
p. 3Failure of discovery-of-new-matter ground

Issues in the judgment

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minor

Party designations are confusing: the judgment says 'The Respondent filed application' and later refers to 'the respondent/applicant', while the opposing party is called both 'Applicant' and 'Respondent' in different paragraphs, and the opposing party is styled 'Petitioner'.

minor

Paragraph numbering skips from paragraph 15 to paragraph 17; paragraph 16 is missing from the judgment.

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 Kenya Airports Authority (Petition E088 of 2021) [2023] KEELRC 2655 (KLR)", Case Analysis (2023). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2655/eng@2023-10-27

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