https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1480

Kenya Union of Commercial Food and Allied Workers v New Murandaria Farmers Coop Society Limited (Cause E003 of 2024) [2026] KEELRC 1480 (KLR) (15 May 2026) (Ruling) Neutral citation: [2026] KEELRC 1480 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nyeri Cause E003 of 2024 SC Rutto, J May 15, 2026 Between Kenya Union of Commercial Food and Allied Workers Claimant and New Murandaria Farmers Coop Society Limited Respondent Ruling 1.What comes up for determination is the Respondent/Applicant’s Notice of Motion dated 24th February 2026, through which the following orders are sought:1.Spent.2.That pending the hearing and determination of this application interparte, this Honourable Court be and is hereby pleased to issue an order for the stay of execution of the Judgement issued on the 21st July 2025 and all consequential orders issued therein.3.That this Honourable Court be and is hereby pleased to review and or set aside or vary and or vacate the Orders issued in its judgement of 21st July 2025 where the Court entered judgement in favour of the Claimant to the effect that:-a.General wage increase of 5 percent for the year 2020/2021 and 5 percent for the year 2021/2022;b.The parties to sign CBA incorporating the said wage increase within 30 days of this judgment;c.Each party to bear its own costs.4.That upon review, this Honourable Court be and is hereby pleased to rectify, consider and examine relevant laws, Rules and By-laws governing registered Cooperative Societies.5.That the Honourable Court to declare the purported Collective Bargaining Agreement for the year 2021/2022 unlawful and unconstitutional.6.That this Honourable Court be pleased to issue such other orders and/or directions which it deems necessary, equitable, fair and just in light of the circumstances of the case.7.That costs for this application be provided for. 2.The Notice of Motion is anchored on the grounds set out therein and is supported by the Affidavit sworn on 24th February 2026 by Julius Irungu Mwangi. 3.Mr. Mwangi who has described himself as the Chairman of the Applicant’s Management Committee, deposes that, pursuant to this Court’s judgment delivered on 21st July 2025, the parties were directed to execute a Collective Bargaining Agreement (CBA) within 30 days. He adds that the Applicant’s advocates subsequently identified material defects in the CBA, in that it contravenes the law and the regulatory instruments governing the Applicant’s operations and management. 4.He further avers that the Court failed to take into account that the CBA negotiations between the Applicant and the Claimant Union were not concluded, owing to the fact that one Josephine Wangui, the Applicant’s Secretary Manager and representative in the negotiations, had secretly joined the Claimant Union without the Applicant’s knowledge. 5.Mr. Mwangi contends that the Claimant ought not to benefit from a CBA procured through deceit, trickery, and dishonesty. He further avers that Josephine Wangui conceded to provisions that were prejudicial to the Applicant. 6.He further deposes that the Court failed to consider the Applicant’s defence and the Claimant’s response thereto, wherein the Claimant admitted, at paragraphs 6 and 7, that Josephine Wangui participated in the negotiations on behalf of the Applicant while being a member of the Claimant Union. 7.Mr. Mwangi further deposes that the Applicant’s financial regulations stipulate that expenditure in any given financial year must not exceed 20% of its total income, and that a budget must be approved by the General Meeting annually. 8.He avers, on the advice of the Applicant’s counsel which he believes to be true, that the CBA prepared by the Claimant contains clauses (8(a), 20(a) and (b), 25, 28, and 29) that are in contravention of the Co-operative Societies Act, the Co-operative Societies Rules, and the Applicant’s registered by-laws. 9.According to Mr. Mwangi, the Applicant is particularly aggrieved by paragraph 4 of the CBA, as it imposes substantial financial obligations in the form of service gratuity, which would, in effect, jeopardize the Applicant’s viability and potentially force it to cease operations. 10.The Notice of Motion is opposed through the Replying Affidavit sworn on 12th March 2026 by Andrew M’Muriuki who has described himself as the General Secretary of the Claimant Union. 11.Mr. M’Muriuki avers that the main suit arose from negotiations relating to a Collective Bargaining Agreement for the period 2020-2022. 12.He contends that the Applicant has failed to demonstrate any error apparent on the face of the judgment or to present new and material evidence sufficient to warrant a review. 13.It is his position that the issues and proposals now raised by the Applicant in the instant Notice of Motion ought to have been canvassed during the negotiations at the shop floor level and at the conciliation stage. 14.He further avers that the Applicant disowned its own proposals on the basis that they were made by its Secretary Manager. That consequently, the Applicant neither objected to nor submitted counterproposals to the Claimant’s proposals during negotiations or conciliation, and cannot now introduce such counterproposals after judgment has been rendered. 15.Mr. M’Muriuki maintains that the proposals advanced by the Applicant in the present application are novel and therefore inappropriate for consideration in a review of the judgment. 16.In his view, if the Applicant was dissatisfied with the Court’s judgment, it ought to have appealed rather than seek a review in the absence of any apparent error or discovery of new evidence. 17.Mr. M’Muriuki further contends that the Court duly considered all the material placed before it, which informed its determination to award a wage increase of 5% per year, as opposed to the 12% sought by the Claimant. He adds that the Applicant was afforded an opportunity to submit information to the Central Planning and Projects Monitoring Department for purposes of preparing an economic report to guide the Court on wage adjustments, but failed to cooperate. Submissions 18.The Motion was canvassed by way of written submissions. Both parties filed written submissions, which the Court has duly considered. Analysis and Determination 19.Upon considering the present Notice of Motion, the Claimant’s Replying Affidavit, and the respective submissions of the parties, the Court finds that the sole issue for determination is whether the Respondent/Applicant has demonstrated sufficient grounds to justify a review of the judgment delivered on 21st July 2025. 20.Under Rule 74(1) of the Employment and Labour Relations Court (Procedure) Rules, 2024 (ELRC Rules), the Court may review its orders or decisions in the following circumstances:a.discovery of new and important matter or evidence not within the knowledge of the applicant despite due diligence at the time of the original ruling;b.existence of a mistake or error apparent on the face of the record;c.where the judgment or ruling requires clarification; ord.any other sufficient reason. 21.The present Motion is premised on the Applicant’s contention that it was represented in the CBA negotiations by one Josephine Wangui, who served as its Secretary Manager while concurrently being a member of the Claimant Union, thereby giving rise to a conflict of interest. The Applicant contends that this issue was raised in its defence and admitted by the Claimant in its reply to the defence, but was not considered by the Court, resulting in an error. 22.The Applicant further contends that although the Court acknowledged the existence of the said irregularity and found that a conflict of interest did arise, it failed to determine the legal implications of that conflict on the validity of the negotiation process. 23.On that basis, the Applicant asserts that the Court’s failure to evaluate and pronounce itself on the legal effect of the conflict of interest constitutes a material omission and an error apparent on the face of the record. 24.It should be appreciated that the Court’s jurisdiction under Rule 74(1) of the ELRC (Procedure) Rules (2024) is narrowly circumscribed, thereby limiting the scope within which a review may be undertaken. 25.When the scope of Rule 74(1) aforementioned is considered against the Applicant’s assertions, it becomes clear that the grounds advanced by the Applicant neither disclose an error apparent on the face of the record nor fall within the categories contemplated under the Rule so as to warrant a review of the Court’s judgment. 26.With tremendous respect to the Applicant, the issues raised in the Notice of Motion essentially amount to a challenge to the merits of the Judgment, which falls within the realm of an appeal. To entertain such a challenge under the guise of review would unduly enlarge the scope of the review jurisdiction and set an undesirable precedent by allowing parties to re-litigate matters already determined. Indeed, the orders sought by the Applicant in the present Motion would have the effect of reopening and re-litigating issues already determined, and would effectively result in a rewriting of the Court’s judgment so as to yield a different outcome. 27.On this issue, the Court concurs with and is bound by the decision of the Court of Appeal in National Bank of Kenya Ltd vs Ndungu Njau [1997] eKLR, wherein it was held as follows:“A review may be granted whenever the court considers that it is necessary to correct an apparent error or omission on the part of the court. The error or omission must be self evident and should not require an elaborate argument to be established. 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 or other provision of law cannot be a ground for review.In the instant case the matters in dispute had been fully canvassed before the learned Judge. He made a conscious decision on the matters in controversy and exercised his discretion in favour of the respondent. If he had reached a wrong conclusion of law, it could be a good ground for appeal but not for review. Otherwise we agree that the learned Judge would be sitting in appeal on his own judgment which is not permissible in law. An issue which has been hotly contested as in this case cannot be reviewed by the same court which had adjudicated upon it”. (Underlined for Emphasis). 28.The Court reiterates that, in the instant case, the Applicant’s dissatisfaction with the findings of the Judgment may very well form a basis for an appeal, but does not constitute a proper ground for review as contemplated under Rule 74(1) of the ELRC Rules. 29.In the final analysis, the Court finds that the Applicant has failed to establish the threshold for the grant of review orders under Rule 74(1) of the ELRC Rules and accordingly, the Notice of Motion dated 24th February 2026 is hereby dismissed, with costs. DATED, SIGNED AND DELIVERED AT NYERI THIS 15TH DAY OF MAY 2026.………………………………STELLA RUTTOJUDGEIn the presence of:For the Claimant/Respondent Mr. Muunda instructed by Ms. MachariaFor the Respondent/Applicant Mr. OrinaCourt Assistant NdatiOrderIn 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 had 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.STELLA RUTTOJUDGE