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ELRCDismissedNotice of Motion dated 11.04.2025 (application within suit before the Employment and Labour Relations Court)· [2025] KEELRC 2095 (KLR)

Kenya Engineering Workers Union v Empire Glass Industries Limited (Employment and Labour Relations Cause E029 of 2022) [2025] KEELRC 2095 (KLR)

Employment and Labour Relations Court
17 July 2025
1,137 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Respondent (applicant) moved the Employment and Labour Relations Court at Nairobi by a Notice of Motion dated 11.04.2025, supported by the affidavit of Kamal Asodia, seeking stay of execution of the judgment of Justice Maureen Onyango delivered on 11.11.2024 and its decree, and further seeking that the judgment and decree be set aside, reviewed, varied and/or vacated. The application was anchored on sections 3 and 16 of the Employment and Labour Relations Court Act, rules 73(2) and 74(1)(a) and (b) of the ELRC (Procedure) Rules 2024, and Order 22 rule 25 of the Civil Procedure Rules. The applicant contended that the claimant pleaded 37 recruited employees while its pleadings tabulated 34, so a simple majority under section 54 of the Labour Relations Act was not met, amounting to an error apparent on the record; and that the claimant was coercing employees to join the union, constituting new and important matter. The Claimant/respondent opposed through the replying affidavit of Wyclifiee Amakombo Nyamwata, arguing the application breached Rule 49, did not meet the section 16 threshold, that the judgment rested on a finding of 29 out of 49 employees, and that the application was filed over five months late without explanation. The court agreed that the numerical ground was misleading or misconceived, that the coercion allegation suggested a new cause of action with no bearing on the judgment, and that the unexplained delay weighed against relief. The application was dismissed with each party bearing own costs, the court noting the continuing industrial relationship requiring a recognition agreement and a collective bargaining agreement.

Key legal issues

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01

Error apparent on the face of the record

Holding

The alleged discrepancy (37 vs 34 recruited employees) was not an error apparent on the face of the judgment because the judgment was founded on a finding of 29 out of 49 employees constituting a simple majority

Reasoning

The applicant's ground relied on figures that the judgment never used. The judgment expressly found that the Claimant recruited 29 out of 49 employees and was therefore entitled to recognition under section 54 of the Labour Relations Act. A review cannot be founded on a mischaracterisation of the judgment's actual finding, rendering the ground misleading or misconceived.

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02

Discovery of new and important matter

Holding

The allegation that the claimant was coercing employees to join the union did not constitute discovery of new evidence relevant to the judgment, as it suggested a new cause of action unrelated to the finding on recognition

Reasoning

The court found the ground strange because the alleged coercion, even if true, would introduce a fresh cause of action with no bearing on the conclusion that the claimant was entitled to recognition. Review is not a vehicle for raising new and unrelated complaints that were not germane to the matters adjudicated in the judgment.

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03

Reasonable time and delay

Holding

The application filed over five months after the judgment was not brought in reasonable time and the unexplained delay justified refusal

Reasoning

Judgment was delivered on 07.11.2024 and the application was filed on 11.04.2025, a delay exceeding five months. No explanation for the delay was offered by the applicant. The court treated the unexplained inordinate delay as an independent ground for declining the application, alongside the failure to establish grounds for review.

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Legal principles established

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  • A ground that misstates the figures actually found in a judgment does not amount to an error apparent on the face of the record for purposes of review
  • An application for review must be brought within a reasonable time and unexplained delay weighs against granting it

Court orders

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  1. 1.The application dated 11.04.2025 is dismissed
  2. 2.Each party to bear own costs of the application
Jurisdiction invoked
Sections 3 and 16 of the Employment and Labour Relations Court Act, rule 73(2) and 74(1)(a) and (b) of the ELRC (Procedure) Rules 2024, and Order 22 rule 25 of the Civil Procedure Rules

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 Engineering Workers Union v Empire Glass Industries Limited (Employment and Labour Relations Cause E029 of 2022) [2025] KEELRC 2095 (KLR)", Case Analysis (2025). Notice of Motion dated 11.04.2025 (application within suit before the Employment and Labour Relations Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2095/eng@2025-07-17

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