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ELRCDismissedNot stated in judgment· [2025] KEELRC 1268 (KLR)

Kenya Union of Domestic Workers, Hotels, Educational Institutions, Hospitals and Allied Workers (KUDHEIHA) v United Kenya Club (Cause 425 of 2019) [2025] KEELRC 1268 (KLR)

Employment and Labour Relations Court
30 April 2025
BMB. O. M. Manani
1,392 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 let a trade union add new documents after losing, confirming review cannot fix defective pleadings or replace an appeal.

What this practically means

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Executive summary

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This ruling by the Employment and Labour Relations Court (B. O. M. Manani, Judge) determines the Claimant's notice of motion dated 17th July 2024 seeking review of a judgment delivered on 11th April 2024, in which the Claimant's suit was dismissed as defective and lacking merit. The earlier judgment found that Mr. Tonge Yoya, who signed the Memorandum of Claim, did not disclose the capacity in which he signed, contrary to section 73 of the Labour Relations Act, rendering the suit fatally defective; it also declined the 3rd Grievant's claim for service gratuity under the Collective Bargaining Agreement because the Respondent had already paid him Ksh. 1,329,544.00 as pension, which would offend the principle against double compensation. The Claimant argued the judgment nullified CBA clauses, that gratuity was payable irrespective of pension, and sought to introduce, for the first time, the Pension Trust Deed dated 20th August 2013 and documents relating to other employees. The Respondent opposed, contending the Claimant had not specified what part of the judgment it sought to review. Applying rule 33 of the ELRC (Procedure) Rules, 2016, the court held that the new documents were within the Claimant's knowledge and power to produce at trial and rejected them at post-judgment stage; that no error apparent on the face of the record or need for clarification was alleged; and that review cannot cure the fatal defect in the pleadings. The court held that the Claimant's grievances were matters for appeal and that a court cannot sit on appeal on its own decision. The application for review was dismissed with costs to the Respondent, the ruling being delivered online pursuant to the Chief Justice's directions of 12th July 2022.

Key legal issues

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01

Whether new documents could be admitted at post-judgment stage in support of review

Holding

Documents not produced at trial despite being within the applicant's knowledge cannot be admitted to anchor review

Reasoning

Rule 33(a) requires discovery of new and important matter or evidence which, after due diligence, was not within the applicant's knowledge or could not be produced when the order was made. The Pension Trust Deed and third-party correspondence were available at trial, so the ground fails and the documents are rejected.

p. 3
02

Whether the other grounds under rule 33 were established

Holding

No error apparent on the face of the record, no need for clarification, and no other sufficient reason was established

Reasoning

The application and supporting affidavit did not contend that the judgment contained an error on its face or required clarification, so those grounds could not be determined in the applicant's favour. Nor was there sufficient reason, since the suit was dismissed for a fatal defect in execution of pleadings which review cannot cure.

p. 3
03

Whether a party dissatisfied with the reasoning of a judgment may use review to challenge it

Holding

No; such challenges belong on appeal, and a court cannot sit on appeal over its own decision

Reasoning

The Claimant's real complaint was with the court's reasoning on the gratuity/pension double compensation point and on the defective pleadings. Those matters are properly the subject of an appeal, not a review, which would amount to the court sitting on appeal on its own decision.

p. 3

Legal principles established

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  • Pleadings instituting a claim on behalf of a trade union must be signed by the General Secretary or a person appointed in writing by the General Secretary, who must disclose the capacity in which they sign
  • A court on review cannot sit on appeal on its own decision
  • An application for review cannot remedy a fatal defect in the pleadings that caused dismissal of the suit

Court orders

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  1. 1.The application for review dated 17th July 2024 is dismissed
  2. 2.Costs of the application awarded to the Respondent

Authorities

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Legislation

  • Labour Relations Actsection 73 (including 73(3))
  • Labour Relations Actsection 2
  • Employment and Labour Relations Court (Procedure) Rules, 2016rule 33
  • Employment and Labour Relations Court (Procedure) Rules, 2016rule 28(3)

Cases cited (1)

  • Peony Management Company Limited v Oyatsi
    (Environment & Land Case 79 of 2020) [2024] KEELC 6460 (KLR) (3 October 2024) (Ruling)
Jurisdiction invoked
Rule 33 of the Employment and Labour Relations Court (Procedure) Rules, 2016 (application for 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 Union of Domestic Workers, Hotels, Educational Institutions, Hospitals and Allied Workers (KUDHEIHA) v United Kenya Club (Cause 425 of 2019) [2025] KEELRC 1268 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1268/eng@2025-04-30

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