Kenya Union of Commercial Food & Allied Workers v Pembe Flour Mills Limited (Cause 971 of 2011) [2014] KEIC 113 (KLR) (4 June 2014) (Ruling)

Kenya Union of Commercial Food & Allied Workers v Pembe Flour Mills Limited (Cause 971 of 2011) [2014] KEIC 113 (KLR) (4 June 2014) (Ruling) Kenya Union of Commercial Food & Allied Workers v Pembe Flour Mills Limited [2014] eKLR Neutral citation: [2014] KEIC 113 (KLR) Republic of Kenya In the Industrial Court at Nairobi Cause 971 of 2011 Nzioki wa Makau, J June 4, 2014 Between Kenya Union of Commercial Food and Allied Workers Applicant and Pembe Flour Mills Limited Respondent Ruling 1.The Claimant/Applicant seeks Review of the Ruling of this Court. TheClaimant's Application was precipitated by a decision of this Courtmade on 30th November 2012 which the Claimant now seeks to havereviewed. The decision related to a collective bargaining agreementbetween the Claimant/Applicant and Respondent. The Respondent isopposed. 2.The Claimant/Applicant filed the Review Application on 24th December2012. In the Memorandum supporting the Review, the Claimantsubmitted that the decision required to be reviewed as the percentageincrease indicated in the Court’s Ruling was erroneous. Additionally theClaimant sought a review of the decision as the name of counsel appearing for the Respondent was indicated as Mr. Ndege yet Mr.Ambenge is the one who had appeared in the proceedings before theCourt. The Review was sought in relation to the increments made inthe CBA as reflected against the General Wages Order. Mr. Nyumbaappeared for the Respondent and urged the Court to review itsdecision in line with the Claimant’s Review Application dated 19thDecember 2012. 3.Mr. Ambenge in his Memorandum of Response to the ReviewApplication averred that the threshold under Rule 32 was not met bythe Claimant. Additionally the Claimant had not adduced sufficientjustification to warrant a review of the decision of the Court in that nonew evidence had been adduced, no issue was raised with respect tobreach of law or want of jurisdiction. It was averred there was re-litigation and contestation of the old evidence. 4.The Rules of this Court provide the scenarios when a review can beavailable to a party. Rule 32 of the Industrial Court (Procedure) Rules2010 makes provision as follows:-32.(1)A person who is aggrieved by a decree or an order of the Court may apply for a review of the award, judgment or ruling—(a)if there is a discovery of new and important matter or evidencewhich, after the exercise of due diligence, was not within theknowledge of that person or could not be produced by that person atthe time when the decree was passed or the order made; or(b)on account of some mistake or error apparent on the face of therecord; or(c)on account of the award, judgment or ruling being in breach of any written law; or(d)if the award, the judgment or ruling requires clarification; or(e)for any other sufficient reasons.(2)An application for review of a decree or order of the Court undersubparagraphs (b),(c), (d), or (e), shall be made to the judge whopassed the decree, or made the order sought to be reviewed.(3)A party seeking review of a Court decree or order of the Court shallapply to the Court in Form 6 set out in the First Schedule.(4)An application under paragraph (3) shall be accompanied by amemorandum supporting the application and the Court shall proceed tohear the parties in accordance with section 26 of the Act.(5)The Court shall, upon hearing an application for review, deliver aruling allowing the application or dismissing the application.(6)Where an application for review is granted, the Court may review itsdecision to conform to the findings of the review or quash its decisionand order that the suit be heard again.(7)An order made for a review of a decree or order shall not be subjectto further review. 5.The Rule above makes it plain that a party seeking review must havemet a set criteria which is enumerated in the Rule and sub-rules. Theparty seeking the review must be in possession of material whichshows that there is a discovery of new and important matter orevidence which, after the exercise of due diligence, was not within theknowledge of that person or could not be produced by that person atthe time when the award or decree was passed or the order made; orthat the review is sought on account of some mistake or error apparenton the face of the record; or that it is sought on account of the award,judgment or ruling being in breach of any written law; or where theaward, judgment or ruling requires clarification; or where there is anyother sufficient reason or reasons. 6.On my part, I am emboldened by the provisions of statute to hold thatreview can only lie where grounds as availed in statute exist. In thecase before me except for an error apparent on the face of the Rulingof 30th November 2012, it seems I am being asked to sit on appealagainst my own judgment. I cannot do so. What the Claimant ought tohave done is appeal my decision if they felt that I had failed to appreciate the case as I should have or if I came to the decision byconsidering matters I ought not to have or applying the wrong law. Ifind comfort in the case of National Bank of Kenya Limited v.Ndungu Njau [1997] eKLR, the Court of Appeal where the AppellateCourt Kwach, Akiwumi and Pall JJA held that:A review may be granted whenever the court considers that it isnecessary to correct an apparent error or omission on the part of thecourt. The error or omission must be self-evident and should notrequire an elaborate argument to be established. It will not be asufficient ground for review that another Judge could have taken adifferent view of the matter. Nor can it be a ground for review that thecourt proceeded on an incorrect exposition of the law and reached anerroneous conclusion of law. Misconstruing a statute or other provisionof law cannot be a ground for review. 7.The finding above agrees with the provisions of Rule 32 of this Court. Iwould correct the error on the face of the record where I refer to Mr.Ambenge as Mr. Ndege at pages 3, 4 and 5. The record should reflectMr. Ambenge as counsel. Nothing else turns on the Application. It doesnot meet strictu sensu with the provisions of Rule 32 of the Court Rules. 8.The upshot of the foregoing is that application for Review is not fit forgrant as the Review Application woefully fails to meet the threshold forReview. It is dismissed with costs to the Respondent.Orders accordingly. **DATED AND DELIVERED AT NAIROBI THIS 4 TH DAY OF JUNE 2014****NZIOKI WA MAKAU****JUDGE**