[2024] KEELRC 2341 (KLR)

Kenya Shipping, Clearing, Freight Logistics and Warehouse Workers Union v Kenya Aviation Workers Union & 5 others (Cause E253 of 2022) [2024] KEELRC 2341 (KLR) (30 September 2024) (Ruling)

Neutral citation: [2024] KEELRC 2341 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Nairobi

Cause E253 of 2022

JK Gakeri, J

September 30, 2024

Between

Kenya Shipping, Clearing, Freight Logistics and Warehouse Workers Union

Applicant

and

Kenya Aviation Workers Union

1st Respondent

Bollore Transport & Logistics (K)

2nd Respondent

East African Commercial & Shipping Co. Ltd

3rd Respondent

Mombasa Container Terminal (K) Ltd

4th Respondent

Socopao Kenya Limited

5th Respondent

Bollore Africa Logistics Kenya

6th Respondent

Ruling

1. Before the Court for determination is the Interested Parties Notice of Motion dated 19th December, 2023 filed under Certificate of Urgency seeking orders that:-1. Spent.2. The Honourable Court be pleased to review the judgment entered on 10th February, 2023. 3.The Judgment delivered on 10th February, 2023 be set aside.4. After grant of prayers 2 and 3 herein above, the Honourable Court be pleased to review the decision and Orders of the Court delivered on 24th July, 2023 in respect of Nairobi ELRCC 229/2023 (formerly Machakos ELRCC E001/2023) Kenya Shipping Clearing Freight Logistics and Warehouse Workers Union (KSCFWWU) V Bollore Transport & Logistics (K) Ltd set them aside and in place allow the Interested Party/Applicant’s claim.5. The costs be in the cause.

2. The Notice of Motion is expressed under Section 3 and 12 of the Employment and Labour Relations Court Act and Articles 22(1), 23(1), 27(1) & (2), 36 and 41 of the Constitution of Kenya and is based on the grounds set out on its face and the Supporting Affidavit of James Tongi sworn on 19th December 2023 who deposes that he is the General Secretary of the Interested Party/Applicant, that the court delivered judgment on 10th February, 2023 in favour of the Respondent (KAWU) determining the recognition agreement between Bollore Africa Logistics (K) Ltd (6th Respondent) and the Claimant/1st Respondent.

3. The affiant deposes that this decision directly informed the decision in NBI/ELRCC 229/2023 and was erroneously entered in favour of the Claimant/1st Respondent as the Applicant is the proper and relevant sectoral union and the 1st Respondent is prohibited by its own registered constitution to represent unionisable employees engaged by the 2nd, 3rd, 4th, 5th and 6th Respondents.

4. That the Court failed to consider the issue raised by the Interested Party/Applicant in respect of the 1st Respondent’s representational capacity as per its constitution, which the 1st Respondent did not avail in Court.

5. The affiant further deposes that the recognition agreement executed on 15th January, 2015 between the parties only binds the Claimant/1st Respondent and the 6th Respondent.

6. That since the 2nd, 3rd, 4th, 5th and 6th Respondents are in the business of Clearing Forwarding Transport and Logistics, the Interested Party is the relevant and proper union to represent the interests of unionisable employees employed by the 2nd to the 6th Respondents and urges the Court to review the judgment delivered on 10th February, 2023 as critical factors were not considered in the judgment.

7. The affiant deposes that the judgment is prejudicial to the Interested party and a review would allow unionisable employees to enjoy freedom of effective representation.

Respondents Reply 8. In her Replying Affidavit sworn on behalf of the Respondent, Mary Chemas, the Human Resource Manager of the Respondents deposes that the Interested Party had not met the threshold of simple majority for purposes of recognition.

9. That the Interested Party also seeks a review of a ruling delivered by Byram Ongaya J. in ELRCC 229/2023 which found that the issues raised had already been determined in the decision sought to be reviewed and the claim was struck out.

10. That the judgment and ruling were binding to all Respondents and the Applicant was misleading the Court.

11. The affiant deposes that the instant application is an afterthought as it was filed almost one (1) year after delivery of judgment and the Applicant is guilty of laches and the application has not met the threshold for review as no error has been shown or clarification sought and was seeking to re-open the matter camouflaged as a review and even introduces the issue of sectoral representation of workers not raised earlier.

12. The affiant prays for dismissal of the application.

Claimant’s response 13. Mr. Moss K. Ndiema deposes that he is the General Secretary of the Decree holder (Claimant) and the application was fatally defective as neither the impugned judgment nor the ruling was produced in Court.

14. The affiant deposes that the application lacks merit and is an abuse of the Court process as it does not meet the threshold for a review application and is an afterthought.

15. That the issue between the Claimant and the Respondents was the threatened termination of their recognition agreement, and whether the interested party had attained the requisite threshold.

16. That the Applicant did not raise the issue of the Claimant’s inability to represent unionisable employees of the Respondents yet it had the information.

17. That the Court is fuctus officio and cannot determine the issue of demarcation pleaded or being sneaked in by the Applicant.

18. The affiant deposes that the Claimant’s constitution permits it to represent the Respondents unionisable employees.

19. That the recognition agreement in force binds the 1st Respondent and its affiliates (2nd – 6th Respondents).

20. That the application is a belated attempt to amend the cause of action as it was specifically made after the ruling in ELRCC No. 229 of 2023.

21. That the application was filed after unreasonable delay and ought to be dismissed with costs.

Interested Party’s submissions 22. As to whether there is a new issue, the Applicant submits that during the hearing, the Claimant did not file its constitution to determine its legitimacy in the sector.

23. That it did not file the recognition agreement as well as it binds the 1st Respondent and the 6th Respondent.

24. The Applicant further submits that the Court did not take into account the provisions of Section 54(8) of the Labour Relations Act.

25. Reliance was made on the provisions of Section 33(a) and 4 of the Labour Relations Act on the freedom of employees to join unions and leave.

26. The Applicant submits that it has discovered a new issue after judgment, namely the registered constitution of the Claimant and the recognition agreement between it and the 6th Respondent were not produced at the hearing and only did so after the ruling in ELRCC No. 229 of 2023.

27. It urges the Court to recognize it as the legitimate trade union registered in the sector.

Claimant’s submissions 28. Counsel for the Claimant submits that the instant application is incompetent and fatally defective as neither a copy of the judgment nor the ruling to be reviewed was filed in consonance with Rule 33(3) of the Employment and Labour Relations Court (Procedure) Rule 2016. The decision in Law Society of Kenya V Centre for Human Rights & Democracy & others SC Petition 14 of 2013 was relied upon to urge that the application is defective and incompetent.

29. Reliance was also made on Suleiman Murunga V Nilestar Holdings Ltd & another (2015) eKLR which cited Wilson Saina V Joshua Cherutich Company Ltd (2003) eKLR.

30. Counsel submits that the judge who made the ruling in ELRCC No. 229 of 2023 was still in Nairobi and was the proper judge to review the ruling.

31. On the legal threshold, counsel urges that a review can only take place in the circumstances prescribed by Rule 33 of the Employment and Labour Relations Court (Procedure) Rules, 2016 and the courts have confirmed as much and the Applicant has not pleaded or disclosed the basis for review.

32. That the Applicant was introducing a new issue of the Claimant’s constitution and was thus litigating by instalments.

33. Counsel submits that the Applicant has not furnished proof that the information was not within its knowledge or not available as due diligence is essential in the discovery of the new evidence or matter as held in Rose Kaiza V Angelo Mpanju Kaiza (2009) eKLR.

34. That the instant application is an attempt to re-open the suit by introducing extraneous issues yet all issues must be raised at once and the new issue was neither raised nor pleaded before the hearing as held in Mary Wanjiru Chege V K- Rep Bank Ltd (2010) eKLR.

35. Reliance was also made on the decision in Member of Parliament Balambala Constituency V Abdi & 7 others (2023) KESC 80 (KLR) for the proposition that a new cause of action cannot be introduced after judgment.

36. That the Claimant was never invited to produce its constitution as no notice to produce was issued.

37. That the Applicant has failed to meet the requirements of Rule 33 and should bear the costs of the suit.

2nd – 6th Respondents submissions 38. On delay, counsel submits that the 10 months delay in filing the instant application is substantial.

39. As regards new evidence, counsel submits that the Constitution of the Claimant and the Recognition Agreement were not produced before the trial court and the issue of sector representative was never brought up as its only claim was on the threshold of simple majority and litigation must come to an end.

40. As to whether the application has grounds for review, counsel relies on the provisions of Section 80 of the Civil Procedure Act and Order 45 Rule 3 of the Civil Procedure Rules, 2010 and case law such as National Bank of Kenya Ltd V Ndungu Njau (1997) KLR, Republic V Advocate Disciplinary Tribunal ex parte Apollo Mboya (2019) eKLR, James Kiiru Mwangi V Gibson Kimani Mwangi & another (2021) eKLR as well as Muyodi V Industrial and Commercial Development Corporation & another (2006) 1 EA 243 to urge that the Applicant had not identified a single error so as to rely on the provisions of Rule 33(b).

41. On discovery of new and important matter or evidence, counsel urges that the constitution and minutes were in possession of the Applicant and not new. Reliance was made on the sentiments of Mativo J. (as he then was) in Republic V Ex parte Apollo Mboya (Supra).

42. According to counsel, the Applicant could not rely on Rule 33(d) “for any other sufficient reason” as the same has not been shown.

Analysis 43. It is common ground that the parties herein were involved in a dispute on termination of Recognition Agreement between the Claimant and the 6th Respondent dated 15th January, 2015 under the name Bollore Africa Logistic Kenya.

44. The Claimant sought inter alia declaration that the letter or notice of termination of the agreement and restrain of the unionisable employees of the 1st Respondent to participate in trade union activities or meet or join was unlawful and illegal, permanent injunction to restrain the termination of the Recognition Agreement and the Respondents from interfering with the Claimant’s or unionisable employees from union activities, victimization or punishment.

45. A copy of the Recognition Agreement was filed as was a copy of the Collective Agreement dated 12th November, 2018.

46. The Interest Party joined the suit on 27th July, 2022 about 3 months after the suit was filed.

47. Vide a judgment delivered on 10th February, 2023, the trial judge found that there was no evidence to show that members of the Claimant union had resigned and joined the Interested Party and the interested party had not recruited a simple majority of unionisable employees of the Respondents or those of the Claimant had fallen below the threshold.

48. The Court found no evidence to entitle the Respondents to terminate the Recognition Agreement between them and the Claimant union and they had only given notice as the National Board is the body mandated to terminate or revoke a Recognition Agreement as held in Micato Safaris V Game Hunting & Safari Workers Union.

49. The Court granted all the orders prayed for by the Claimant except costs.

50. This is the judgment the subject matter of the instant application.

51. Needless to belabour, the power of the Court to review its Judgment, Rulings or Orders is statutory.

52. Section 80 of the Civil Procedure Act and Section 16 of the Employment and Labour Relations Court Act, 2011 provide for the review jurisdiction of the Court.

53. The specific circumstances in which review jurisdiction may be invoked are provided for by the Civil Procedure Rules, 2010 and in the case of this Court, the Employment and Labour Relations Court Procedure Rules, 2016 (herein after ELRC Rules, 2016)

54. Rule 33 of the Employment and Labour Relations Court Rules, 2016 provides that;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 judgement or ruling –a.if there is discovery of new and important matter or evidence which after the exercise of due diligence, was not within the knowledge of that person or could not be produced by that person at that time when the decree was passed or the order made;b.on account of some mistake or error apparent on the face of the record;c.if the judgement requires clarification; ord.for any other sufficient reason.

55. The Applicant relies on the provisions of Rule 33(1)(a) and (b) of the Rules.

56. The sole issue for determination is whether the Interested Party’s Notice of Motion meets the threshold for the Court to exercise its review jurisdiction over the judgment delivered on 10th February, 2023.

57. First, a plain reading of Rule 33(1) leaves no doubt that an applicant review must act with reasonable dispatch and promptitude. The rule uses the phrase “within reasonable time”.

58. Although the Interested Party/Applicant did not address this issue, it is a pertinent point as it is a requirement of the rule.

59. Both the Claimant and the 2nd - 5th Respondents are in unison that the application was not filed within a reasonable time. They contend that there was substantial delay.

60. Was the instant application filed within a reasonable time?

61. It is trite law that what constitutes reasonable time in any given situation is a question of fact dependent on the peculiar circumstances of the case. See Jaber Mohsen Ali V another V Priscillah Boit & another (2014) eKLR.

62. It is common ground that the judgment sought to be reviewed was delivered on 10th February, 2023 and the instant application was filed on 21st December, 2023, more than 10 months later.

63. Intriguingly, the Applicant has neither explained nor justified the long delay in filing of the application.

64. In the absence of any explanation as to why the instant application was filed more than 10 months after the judgment was delivered, the Court is not persuaded or satisfied that it was filed within reasonable time in the context of Rule 33(1) of the ELRC Rules 2016.

65. On substantive issues, the Interested Party alleges that it has come across new and important matter or evidence which justifies a review of the judgment. That it has after judgment discovered that the Claimant union had a registered Constitution and a Recognition Agreement with the Respondent and the two documents were not mentioned during the hearing and the discovery came when the parties canvassed ELRC No. 229 of 2023.

66. Regrettably, neither a copy of the judgment nor the ruling sought to be reviewed was attached to the Notice of Motion contrary to the provisions of Rule 33 (B) of the ELRC Rules, 2016.

67. A copy of the Judgment or Ruling sought to be reviewed must be filed.

68. The Claimant’s Counsel urges that the omission renders the application incompetent and fatally defective as the Rule uses the term “shall” which denotes mandatory compliance and the Court is bound by the construction of the term “shall” by the Supreme Court of Kenya in Law Society of Kenya V Centre for Human Rights & Democracy & others (Supra).

69. The more salient question is whether the Claimant’s Constitution and Recognition Agreement were new and important matters or evidence to justify a review of the trial court’s judgment.

70. While it is true that the Claimant’s constitution was not filed in the claim, a copy of the Recognition Agreement dated 15th January, 2015 was annexed to the claim marked as exhibit MKN-I and was thus available to all parties.

71. As regards the Claimant’s Constitution, neither of the parties pleaded or raised the issue or an issue that necessitated its production by the Claimant.

72. The Claimant’s case did not implicate its Constitution which would appear to explain why it did not find it one of the relevant documents as an exhibit.

73. In the Courts view, none of the issues raised at the hearing necessitated perusal of the Claimant’s Constitution.

74. At any rate and as argued by the Claimant’s counsel, the Interested Party/Applicant did not file a notice to produce the document or request the trial judge to order its production.

75. Puzzlingly, the Interested Party has not demonstrated any exercise of due diligence or why the documents could not be produced earlier yet as a trade union, it is aware that all trade unions have a Constitution which is the constitutive document and its perusal would have strengthened its case.

76. In sum, it is the finding of the Court that the Interested Party has failed to demonstrate the applicability of Rule 33(1) (a) of the ELRC Rules, 2016 to the instant application.

77. Secondly, in its Supporting Affidavit, the Interested Party alleges that the impugned judgment was erroneously entered into in favour of the Claimant as the Applicant is the proper and relevant sectoral union to represent the Respondents unionisable employees.

78. According to the applicant, the Court failed to consider the Claimant’s representational capacity as per its Constitution.

79. The Supporting Affidavit makes no reference to the specific error or mistake apparent on the face of the record and on what page.

80. Judicial authority is clear that to amount to a mistake or error apparent on the face of the record, the same must be “self-evident and not require an elaborate argument to establish as held by the Court of Appeal in National Bank of Kenya Ltd V Ndungu Njau (Supra) inter alia;“. . . It will not be a sufficient ground for review that another Judge could have taken a different view of the matter. Nor can it be a ground for review that the Court proceeded on an incorrect exposition of the law and reached an erroneous conclusion of law. Misconstruing a statute of other provision of law cannot be a ground for review.”

81. The foregoing sentiments apply on all fours to the circumstances of this application.

82. In Muyodi V Industrial and Commercial Development Corporation & another (Supra), the Court of Appeal stated inter alia;“. . . There is a real distinction between a mere erroneous decision and an error apparent on the face of the record. Where an error on a substantial point of law stares one in the face and there could reasonably be no two options, a case of an error apparent on the face of the record would be made out. An error has to be established by a long drawn process of reasoning or on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record.Again, if the view adopted by the Court in the original record is a possible one, it cannot be an error apparent on the face of the record even though another view was also possible. Mere error or wrong view is certainly no ground for a review although it may be for an appeal . . .”

83. The Interested party’s case is that an examination of the Claimant’s Constitution would reveal that the Claimant is not the most appropriate sectoral union representative, an issue it never brought up in the claim or demonstrate that it had recruited a simple majority of the Respondents unionisable employees, being the most appropriate sectoral representative.

84. Flowing from the foregoing, it is clear that the Applicant has failed to demonstrate that the learned trial judge made a mistake or error apparent on the face of the record.

85. Thus far, it is clear that the Interested Party has failed to demonstrate how the instant application relates to Rule 33 of the ELRC Rules, 2016 or justify a review of the judgment of the Court.

86. Finally, the issue of sectoral representation, which the Claimant is raising in the instant application ought to have been raised before the trial court if the Applicant herein considered it relevant for the Court to make a determination on it if it so deemed just.

87. It is not lost to the Court that the Claimant’s case hinges on who is better placed to represent the unionisable employees of the Respondents, a matter not before this court.

88. Regrettably, the Claimant recruited the requisite majority of the employees, was recognized by the Respondents and remains the only recognized union. The Applicant failed to prove that it had the requisite numbers, the provisions of its Constitution or that of the Claimant notwithstanding.

89. The Applicant is thus invoking the Court’s review jurisdiction to litigate other issues which is equivalent to litigating by instalments as characterized by the Claimant’s counsel.

90. Strangely, the applicant also sought a review of the ruling in ELRC 229/2023 (formerly Machakos ELRC E001/2023 delivered on 24th July, 2023, which it appears to disagree with yet it neither availed a copy of the ruling nor urge the court on what grounds the ruling ought to be reviewed.

91. More significantly, the applicant seeks the court’s discretion to review a Judgment and a Ruling simultaneously made by different judges and one is still in Nairobi where the ruling was delivered.

92. Thus, coupled with the fact that no case for review of the Ruling has been made before this court, the application is patently before the wrong court and is dismissed.

93. The totality of the foregoing is that the Interested Party/Applicant has failed to sustain a case for review of the judgment delivered on 10th February, 2023.

94. In the upshot, the Interested Party’s Notice of Motion dated 19th December, 2023 is for dismissal and it is accordingly dismissed.

95. Parties shall bear their own costs.

DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 30TH DAY OF SEPTEMBER 2024DR. JACOB GAKERIJUDGEORDERIn view of the declaration of measures restricting court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules, which requires that all judgments and rulings be pronounced in open court. In permitting this course, this court has been guided by Article 159(2)(d) of the Constitution which requires the court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 1B of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) which impose on this court the duty of the court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes.