[2018] KEELRC 107 (KLR)
The court held that the applicant's request for review was based on a finding of fact and law already made by the trial judge regarding the absence of evidence authorizing the deduction of union dues via a check off form. Such a finding can only be challenged through an appeal, not by way of review. The applicant...
Source-derived case information.
- Citation
- [2018] KEELRC 107 (KLR)
- Parties
- Applicant: Kenya National Union of Nurses; Respondent: The County Public Service Board Homabay
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Cause 301 of 2017
- Procedural Posture
- Review Application / Ruling on Application for Review of Earlier Ruling
- Outcome
- application for review dismissed
- Judges
- MN Nduma
- Legal Topics
- Union Dues Deduction, Check Off Forms, Review of Ruling, Labour Relations Act, Mistake or Error on Record
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Kenya National Union of Nurses
Applicant
The County Public Service Board Homabay
Respondent
Procedural Posture
Review Application / Ruling on Application for Review of Earlier Ruling
Legal Issues
- 1 Whether the court erred in law and fact in finding that there was no evidence of authority to deduct union dues from employees' salaries by way of a check off form.
- 2 Whether the applicant has disclosed valid grounds for review or setting aside of the previous ruling under Rule 33 of the Employment and Labour Relations Court (Procedure) Rules, 2016.
Ratio Decidendi
The court held that the applicant's request for review was based on a finding of fact and law already made by the trial judge regarding the absence of evidence authorizing the deduction of union dues via a check off form. Such a finding can only be challenged through an appeal, not by way of review. The applicant failed to disclose any valid grounds under Rule 33 of the Employment and Labour Relations Court (Procedure) Rules, 2016 to warrant a review or setting aside of the previous ruling. The court therefore dismissed the application for review, noting that disputes of fact and law may be addressed in the main suit.
Court Disposition
application for review dismissed
Orders
- The application for review is dismissed.
- Disputes of fact and law may be canvassed in the main suit.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT KISUMU
CAUSE NO. 301 OF 2017
(Before Hon. Justice Mathews N. Nduma)
KENYA NATIONAL UNION OF NURSES.................................CLAIMANT
VERSUS
THE COUNTY PUBLIC SERVICE BOARD HOMABAY......RESPONDENT
R U L I N G
1. Application dated 15th February, 2018 and filed on even date seeks review of the ruling by Hon. Lady Justice Maureen Onyango delivered by myself on 22nd December, 2017 on the grounds set out in the Notice of Motion on grounds that the court erred in law and fact in its ruling at paragraph 4 & 5 of the ruling in stating-
“I agree with the Respondent that there is no evidence of the authority to deduct union dues from the salaries of its members which under section 49 of the Act should be in form ‘S’ commonly referred to as the check off form.”
2. Rule 33 of the Employment and Labour Relations Court (Procedure) Rules 2016, under which this application is brought reads –
33(1)A person who is aggrieved by a decree or an order from which an appeal is allowed but from which no appeal is preferred or from which no appeal is allowed, may within reasonable time, apply for a review of the judgment or ruling -
a. ………………
b. On account of some mistake or error apparent on the face of the record.
c. ……………..
d. For any other sufficient reason
3. The application is opposed vide a replying affidavit by the Respondent filed on 6th March, 2018.
4. The basis on which the review is sought is a finding of law and fact at page 5 of the ruling to the effect that there was no evidence adduced by the Applicant showing that Respondent had authority to deduct union dues from its employees by way of a “Check Off Form” duly filed, submitted and authorized by the Minister in terms of section 49 of the Labour Relations Act, 2007.
5. This as the Applicant correctly puts it was a finding of fact and law by the Hon. Judge. This finding may only be challenged by an Appeal to the Court of Appeal.
6. The Applicant cannot invite this court to make a contrary finding of fact and law to that already made by the trial Judge. This is wanting to have a second bite on the cherry as it were through the back door.
7. It is the court’s finding that no valid grounds have been disclosed by the Applicant to warrant review or setting aside of the ruling by Hon. Maureen Onyango delivered on 1st February, 2018.
8. Disputes of fact and law in this matter may however be canvassed and concluded in the main suit in which similar prayers as were sought in the dismissed application are made.
Dated, Signed and Delivered in Kisumu this 6th day of December, 2018
Mathews N. Nduma
Judge
Appearances
Mr. John Karakacha for Claimant/Applicant
Mr. Nyauke for Respondent
Chrispo – Court Clerk