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ELRCDismissedCause (Motion dated 24 June 2024) arising from the Claim against Nestle Kenya Ltd· [2025] KEELRC 138 (KLR)

Kenya Union of Commercial, Food and Allied Workers v Nestle Kenya Limited; Gicobi & 7 others (Applicant) (Cause E811 of 2023) [2025] KEELRC 138 (KLR)

Employment and Labour Relations Court
30 January 2025
1,402 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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What this practically means

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Executive summary

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Seven Grievants (the applicants) who had been declared redundant by Nestle Kenya Ltd sought, by a Motion dated 24 June 2024, to have Muthoni Njagi Advocates enter appearance on their behalf, to stay the Court's Ruling of 14 May 2024 and the main Cause, and to review or set aside that Ruling on grounds of discovery of new material evidence (an unsigned Settlement Agreement) and an error apparent on the face of the record. They attacked the consent of 16 November 2023 between the Union and the Respondent settling the termination claim, alleging fraud, non-disclosure and misrepresentation, and argued the consent had never been adopted by the Court. The Union opposed, citing res judicata, abuse of process and payments made to the Grievants, while the Respondent also filed a replying affidavit. The Court dismissed the Motion. It held it could not entertain afresh the prayer for the advocate to come on record, already declined, as that would be sitting on appeal over a decision of concurrent jurisdiction; a negative order cannot be stayed; the Cause had settled upon execution of the consent, so there was nothing to stay even absent formal adoption; the unsigned Settlement Agreement was inadmissible; and the alleged error involved conflating a consent's validity with its adoption. The Court concluded the review application improperly invoked appellate jurisdiction and dismissed the Motion dated 24 June 2024 with costs to the Claimant and Respondent. Judgment delivered virtually on 30 January 2025 by Radido Stephen, J.

Key legal issues

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01

Whether the Court could entertain afresh the prayer for Muthoni Njagi Advocates to come on record

Holding

The prayer could not be entertained; the proper remedy was appeal, and rehearing it would reopen a determined issue.

Reasoning

The Ruling of 14 May 2024 had already declined the same prayer. The Court of concurrent jurisdiction cannot sit on appeal over its own decision or reopen a determined issue. The applicants' remedy against the earlier Ruling was an appeal, not a fresh application repeating the declined prayer within a review Motion.

p. 3
02

Whether stay of the Ruling and of the Cause could issue

Holding

No stay: the Ruling produced a negative order which cannot be stayed, and the Cause had been settled by the consent so nothing remained to stay.

Reasoning

The Ruling of 14 May 2024 dismissed the initial Motion, producing a negative order; courts cannot stay negative orders. Further, upon execution of the consent of 16 November 2023 the Cause stood settled, and even if the consent was not formally adopted there was no Cause pending for hearing on the merits capable of being stayed.

p. 3
03

Whether the Ruling should be reviewed for discovery of new material evidence

Holding

No: the Settlement Agreement was unsigned and inadmissible, and its discovery was not properly established.

Reasoning

Rule 74 of the ELRC (Procedure) Rules, 2024 sets out the grounds for review. The applicants relied on discovery of a Settlement Agreement and cited section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules. However, they did not disclose when they found the document, and the copy filed was unsigned, making its antecedents doubtful and inadmissible.

p. 3
04

Whether there was an error apparent on the face of the record in the Ruling's treatment of the consent

Holding

No error: the validity of the consent did not depend on Court adoption, and setting it aside required proof of fraud or non-disclosure which was not demonstrated.

Reasoning

The applicants conflated the question of the consent's validity with its adoption by the Court. Adoption was only relevant to enforcement if a party reneged. In the earlier Ruling the Court, applying Kuwinda Rurinja Co Ltd v Kuwinda Holdings Ltd, had found no fraud or non-disclosure of material facts; the review Motion sought impermissibly to revisit that determination.

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Legal principles established

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  • A court cannot stay a negative order - an order that merely dismisses an application.
  • The validity of a consent between parties does not depend on adoption by the Court; adoption is of legal utility only for enforcement if a party reneges.
  • A review application that seeks to revisit questions already decided improperly invokes appellate jurisdiction and res judicata bars relitigation of determined issues.
  • An unsigned Settlement Agreement does not meet the standard for admissibility.

Court orders

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  1. 1.The Motion dated 24 June 2024 is dismissed with costs to the Claimant and Respondent
Jurisdiction invoked
Review jurisdiction under Rule 74 of the Employment and Labour Relations Court (Procedure) Rules, 2024 (previously Rule 33 of the 2016 Rules); section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules urged by applicants

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 Nestle Kenya Limited; Gicobi & 7 others (Applicant) (Cause E811 of 2023) [2025] KEELRC 138 (KLR)", Case Analysis (2025). Cause (Motion dated 24 June 2024) arising from the Claim against Nestle Kenya Ltd. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/138/eng@2025-01-30

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