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ELRCDismissedCause No E388 of 2023· [2024] KEELRC 1810 (KLR)

Kenya Private Universities Workers Union v Catholic University of Eastern Africa (Cause E388 of 2023) [2024] KEELRC 1810 (KLR)

Employment and Labour Relations Court
8 July 2024
2,764 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court dismissed a union's bid to revive its CBA suit, confirming that disagreements over how a judge applied the law belong in an appeal, not a review.

What this practically means

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Executive summary

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The Claimant, a trade union, had sued seeking a declaration that the Respondent's refusal to negotiate and sign a Collective Bargaining Agreement was unfair, and an order adopting its draft CBA. The court struck out that suit as an abuse of process, holding that CBA negotiations require a valid subsisting Recognition Agreement under section 54 of the Labour Relations Act, and that the validity of the parties' Recognition Agreement was already under litigation in ELRC Cause No. 4 of 2019 and Cause No. 239 of 2019. The union then filed the application dated 5th February 2024 under rule 33 of the ELRC (Procedure) Rules seeking review, alleging an error apparent on the face of the record, and asking the court to vacate the striking out and reinstate and stay the suit pending the related causes. Justice B. O. M. Manani held that the mere filing of a Notice of Appeal does not preclude a subsequent review application, and the union's withdrawal of its Notice of Appeal on 29th February 2024 cured any concurrency concern. However, on the merits, the Claimant failed to identify any error apparent on the face of the record. Its assertion that recognition had been settled in ELRC Cause No. 805 of 2017 was found farfetched, the court having verified that the judgment in that cause did not address recognition. The alleged defect was at most a misapprehension of law, which is a ground for appeal and not review, as held in Pancras T. Swai v Kenya Breweries Limited. The request to reinstate and stay the suit also had no basis, since the suit was untenable while the Recognition Agreement was contested, and refusal of review would not trigger res judicata. The application was dismissed with costs to the Respondent.

Key legal issues

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01

Whether pursuing an appeal and a review concurrently is permissible

Holding

The filing of a Notice of Appeal does not amount to the actual filing of an appeal; a party may withdraw the Notice and elect review instead.

Reasoning

The court acknowledged the case law is unsettled, citing HA v LB. Nonetheless it preferred the view that a Notice of Appeal merely signifies intention to appeal and is not the actual appeal, so a litigant may withdraw the notice and file a review application. The Claimant had done exactly that by withdrawing its Notice of Appeal dated 20th December 2023 on 29th February 2024 before pursuing the review.

p. 4
02

Whether the application disclosed an error apparent on the face of the record under rule 33

Holding

It did not; the alleged error was a misapprehension of law which is only appealable.

Reasoning

The Claimant asserted the recognition question had been settled in ELRC Cause No. 805 of 2017, but the court verified on the Kenya Law website that the judgment in that cause did not address recognition between the parties. What remained was a complaint that the court misapplied the law by holding that a CBA could not be compelled absent a valid Recognition Agreement - a ground for appeal, not review, per Pancras T. Swai v Kenya Breweries Limited.

p. 5
03

Whether the striking out of the main suit should be set aside and the suit reinstated and stayed

Holding

The request was refused; striking out the suit was lawful since the suit was untenable while the Recognition Agreement was under litigation.

Reasoning

The suit sought to compel the Respondent to sign a draft CBA despite the Recognition Agreement being contested in ELRC Cause No. 4 of 2019 and Cause No. 239 of 2019. The court had found the suit an abuse of process and struck it out; reinstatement had no basis. Nor would refusal of review trigger res judicata, since parties remain free to resume CBA negotiations depending on how the other causes were determined.

p. 5

Legal principles established

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  • The mere filing of a Notice of Appeal does not bar a party from filing an application for review; a party may withdraw the Notice of Appeal and pursue review instead.
  • Misapprehension or misapplication of the law by a judicial officer is a ground for appeal, not for review.
  • Under section 54 of the Labour Relations Act, a valid Recognition Agreement is a prerequisite to CBA negotiations between an employer and a trade union.
  • A trade union does not require a Recognition Agreement to represent its members in court or elsewhere.

Court orders

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  1. 1.The Claimant's application dated 5th February 2024 is dismissed
  2. 2.Costs of the application to the Respondent

Authorities

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Legislation

  • Labour Relations Actsection 54
  • Employment and Labour Relations Court (Procedure) Rulesrule 33
  • Employment and Labour Relations Court (Procedure) RulesRule 28(3)

Cases cited (4)

  • HA v LB
    [2022] eKLR
  • Kenya Private Universities Workers Union v Catholic University of Eastern Africa (Cause 805 of 2017)
    [2024] KEELRC 956 (KLR) (25 April 2024) (Judgment)
  • Modern Soap Factory v Kenya Shoe and Leather Workers Union
    [2020] eKLR
  • Pancras T. Swai v Kenya Breweries Limited
    [2014] eKLR
Jurisdiction invoked
Employment and Labour Relations Court (Procedure) Rules, rule 33 (review)

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 Private Universities Workers Union v Catholic University of Eastern Africa (Cause E388 of 2023) [2024] KEELRC 1810 (KLR)", Case Analysis (2024). Cause No E388 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1810/eng@2024-07-08

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