Kenya Union of Commercial Food and Allied Workers v Jetlack Food Limited (Cause 664 of 2019) [2024] KEELRC 2001 (KLR)
The bottom line
#A Kenyan employment court refused to review its gratuity judgment because the union filed the wrong CBA, but corrected a small clerical error in the ruling.
What this practically means
#Executive summary
#Key legal issues
#Whether the mistaken filing of the wrong CBA justified review under Rule 33(1)(a)
Review was not merited. The Claimant was privy to the 2014-2015 CBA and aware of its existence at all material times; it failed to allege due diligence or that the CBA could not have been produced at the hearing.
Rule 33(1)(a) requires an applicant to demonstrate discovery of new and important matter after exercise of due diligence, and that the matter was not within their knowledge and could not be produced earlier. The Claimant's grounds and supporting affidavit made no such allegations. Since the Claimant was a party to the CBA 2014-2015, its retrieval and filing ought to have been a matter of course, and the four-year period between filing and hearing gave ample time to review the file.
Whether review can substitute for an appeal against findings of fact
No. Review jurisdiction is limited to the circumstances in Rule 33(1) and is not an avenue for appealing court findings.
The court emphasized that findings of fact are typically challenged by appeal, not review. The application was in substance an attempt to have the court revisit its factual finding that the grievant was not entitled to gratuity, using review as a back-door appeal, which is an abuse of the review process as cautioned in the authorities cited.
Whether the clerical error in paragraph 45 of the judgment should be rectified
Yes, granted. Rule 34 empowers the court to rectify clerical mistakes on request or suo motu.
Paragraph 45 of the judgment, which dealt with the binding nature of a CBA, ought to have referred to Section 59(1) of the Labour Relations Act, 2007 rather than the non-existent Section 159. The court found the clerical mistake real, merited rectification, and granted that prayer.
Legal principles established
#- Review jurisdiction is limited in scope and available only in the circumstances outlined in Rule 33(1); it is not an avenue for appeal against findings of fact
- A review applicant under Rule 33(1)(a) must demonstrate discovery of new and important matter or evidence after due diligence, which was not within their knowledge and could not be produced earlier
- Rule 34 of the ELRC (Procedure) Rules, 2016 confers jurisdiction on the court to rectify clerical mistakes, incidental errors or omissions suo motu or on request
Court orders
#- 1.Paragraph 45 of the Court's judgment delivered on 21st November 2023 is rectified to read Section 59(1) of the Labour Relations Act, 2007 in lieu of Section 159(1) of the Labour Relations Act, 2007
- 2.Rectified copy of the judgment dated 21st November 2023 to be forwarded to the parties
- 3.All other prayers declined
- 4.Parties shall bear own costs
- Jurisdiction invoked
- Section 16 of the Employment and Labour Relations Court Act, 2011 and Rules 33 and 34 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 Union of Commercial Food and Allied Workers v Jetlack Food Limited (Cause 664 of 2019) [2024] KEELRC 2001 (KLR)", Case Analysis (2024). Notice of Motion dated 4th April 2024 (arising from judgment delivered 21st November 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2001/eng@2024-07-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.