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ELRCDismissedNot stated in the judgment extract· [2024] KEELRC 1676 (KLR)

Kenya Union of Commercial Food and Allied Workers v Bhumi Distributors Limited (Cause E0004 of 2013) [2024] KEELRC 1676 (KLR)

Employment and Labour Relations Court
28 June 2024
MOMAUREEN ONYANGO
1,443 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employment court refused to reopen a judgment, ruling that review cannot be used as a backup when an appeal is already underway.

What this practically means

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Executive summary

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This ruling of the Employment and Labour Relations Court (Maureen Onyango, J) disposed of a Notice of Motion dated 24th January 2024 in which the Respondent sought review, vacation, variation or setting aside of the court's judgment of 21st December 2023, and reopening of the case so that evidence allegedly not before the court at judgment could be considered. The Respondent, a limited liability company with branches, contended that its administrative functions are run from its Mombasa headquarters, that its Eldoret branch staff cannot make decisions, and that the Claimant union had not met the recognition threshold. The Claimant opposed, arguing the Respondent had fully participated in the trial, had earlier sought leave to file additional documents but never filed them, and that the judgment merely required compliance with the law, including mandatory check-off deductions under section 48 of the Labour Relations Act. The court applied Rule 33 of the ELRC (Procedure) Rules, 2016, holding that review lies only on discovery of new and important matter not obtainable with due diligence, error apparent on the face of the record, need for clarification, or other sufficient reason. The Single Business Permits and trading licence relied on did not prove that the headquarters are in Mombasa or that the branches are managed as one entity, and no explanation was given for not filing them earlier. Additionally, since the Respondent had filed an unwithdrawn Notice of Appeal and a pending stay application, review was unavailable under Rule 33. The application was dismissed with costs to the Claimant.

Key legal issues

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01

Discovery of new and important matter or evidence

Holding

The business permits produced did not constitute new evidence discoverable only after judgment; the Respondent failed to explain why they were not filed earlier, and the permits did not even prove that the headquarters are in Mombasa.

Reasoning

The court examined the documents relied on - Single Business Permits for Mombasa, Nairobi and Uasin Gishu and a Kisumu trading licence - and found they neither show the headquarters are in Mombasa nor that the businesses are managed as one entity. The Respondent gave no reasons for not filing the permits earlier, and had previously sought and obtained leave to file further documents but never did so.

p. 3
02

Availability of review where appeal is pending

Holding

Having filed a Notice of Appeal dated 21st December 2023 that has not been withdrawn, and a parallel stay-of-execution application, the Respondent could not invoke review.

Reasoning

The court noted the pending Notice of Appeal and a contemporaneous application for stay of execution pending appeal. Since Rule 33 confines review to judgments or orders from which no appeal has been preferred, the application was incompetent on this additional ground.

p. 3
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Discretion to review

Holding

Courts have discretion to allow review on three grounds but the Respondent pleaded none satisfactorily; the application failed.

Reasoning

The court restated the three grounds for review and the requirement of no undue delay, then tested the Respondent's pleaded ground (new evidence of centralized administration from Mombasa) against the record and found it unproven and unavailable on the pleaded basis.

p. 3

Legal principles established

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  • Review is available only on the grounds in Rule 33: discovery of new and important matter or evidence not obtainable with due diligence, error apparent on the face of the record, need for clarification, or other sufficient reason, and the application must be made without undue delay.
  • Review of a judgment is not available where an appeal has been preferred and not withdrawn.

Court orders

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  1. 1.The Notice of Motion dated 24th January 2024 is dismissed
  2. 2.Costs of the application to the Claimant

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 3 and 3A
  • Employment and Labour Relations Court ActSection 16
  • Employment and Labour Relations Court (Procedure) Rules, 2016Rule 33(1),(2),(3),(4),(5)
  • Labour Relations ActSection 48
Jurisdiction invoked
Section 1A & 3 and 3A Civil Procedure Act; section 16 Employment and Labour Relations Court Act; Rule 33(1)(2)(3)(4) and (5) 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 Union of Commercial Food and Allied Workers v Bhumi Distributors Limited (Cause E0004 of 2013) [2024] KEELRC 1676 (KLR)", Case Analysis (2024). Not stated in the judgment extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1676/eng@2024-06-28

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