Aviation & Airport Services Workers Union (Kenya) v Registrar of Trade Unions & Kenya Aviation Workers Union
The bottom line
#The Supreme Court cannot hear appeals from interim discretionary Court of Appeal orders.
What this practically means
#The Supreme Court of Kenya ruled it lacks power to hear appeals from temporary orders made by the Court of Appeal under Rule 5(2)(b). In a trade union deregistration dispute, the Court of Appeal issued an interim stay pending appeal. The union tried to challenge that order at the Supreme Court. The Supreme Court said its jurisdiction is limited by the Constitution and does not cover such discretionary interim rulings. Even if both sides agree, they cannot give the Supreme Court legal authority it does not have.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether this Court has the requisite jurisdiction to hear and determine the Application, and by extension the Petition of Appeal filed before it
- 2.Whether a case has been made to the satisfaction of the Court for grant of the stay orders sought
Key legal issues
#Whether the Supreme Court has jurisdiction to hear an appeal from a Court of Appeal ruling under Rule 5(2)(b) of the Court of Appeal Rules.
The Supreme Court lacks jurisdiction to entertain an appeal from a Rule 5(2)(b) ruling because such rulings are discretionary and not appealable as of right under Article 163(4) of the Constitution.
The Court relied on its settled precedents, including Jasbir Singh Rai and Teachers Service Commission v KNUT, which established that discretionary decisions of the Court of Appeal under Rule 5(2)(b) are not appealable to the Supreme Court. The Court distinguished the Deynes Muriithi case, noting it was decided on unique factors not present here. The Court emphasized that the substantive appeal was still pending before the Court of Appeal, and the Rule 5(2)(b) ruling was merely an interlocutory decision preserving the subject matter pending that appeal. The Court also noted that the Court of Appeal had properly exercised its discretion considering the circumstances, including that deregistration had already occurred.
Whether parties can confer jurisdiction on a court by consent.
Parties cannot confer jurisdiction on a court by consent; jurisdiction flows from the Constitution or legislation and cannot be created by agreement of the parties.
The Court held that jurisdiction is a fundamental legal question that can be raised by the court suo moto. Citing Samuel Kamau Macharia, the Court stated that jurisdiction flows from the Constitution or legislation and a court cannot arrogate to itself jurisdiction exceeding that conferred by law. Therefore, the earlier consent recorded before a single judge did not bar the Court from finding it lacked jurisdiction, as parties can only consent to factual issues, not fundamental legal questions like jurisdiction.
Legal principles established
#- Court of Appeal rulings under Rule 5(2)(b) are discretionary and not appealable to the Supreme Court as of right.
- Jurisdiction cannot be conferred by consent of parties; it flows from the Constitution or statute.
- A court may raise the issue of jurisdiction on its own motion at any stage.
- The Supreme Court will not entertain appeals from interlocutory decisions of the Court of Appeal.
- The Supreme Court distinguishes its precedent Deynes Muriithi as decided on unique facts.
- Parties cannot use consent to confer jurisdiction where none exists.
Court orders
#- 1.The Notice of Preliminary Objection dated 6th April, 2017 is hereby allowed.
- 2.The Notice of Motion Application dated 23rd February 2017 is hereby dismissed for want of jurisdiction.
- 3.As a consequence, and for avoidance of doubt, the Petition of appeal dated 23rd February 2017 is hereby struck out for want of jurisdiction.
- 4.The Petitioner/Applicant shall bear the costs of the Respondents.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Court of Appeal at Nairobi
- Civil Application No. Nai 274 of 2016
- Jurisdiction invoked
- Article 163(4)(a) of the Constitution
Relief refused
#Stay of execution of the entire Ruling and orders of the Court of Appeal issued in Civil Application No. Nai 274 of 2016 on 3rd February 2017 pending the hearing and determination of the appeal
The Court lacked jurisdiction because the appeal emanated from a Rule 5(2)(b) Ruling of the Court of Appeal, which is a discretionary decision not appealable to the Supreme Court as of right.
Temporary injunction restraining the 2nd Respondent from operating as a Trade Union
The Court lacked jurisdiction to entertain the application.
Costs
The Petitioner/Applicant shall bear the costs of the Respondents.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
We reiterate the fundamental principle that Court of Appeal Rulings under Rule 5(2)(b) are made in exercise of a discretion and hence are not appealable to this Court as of right stands and is still good law.
Key timeline
#Practical implications
#Avoid appealing interim rulings
Do not file appeals at the Supreme Court against Court of Appeal Rule 5(2)(b) rulings. Such appeals will be struck out for want of jurisdiction. Focus on the substantive appeal in the Court of Appeal. Also, verify jurisdictional basis before proceeding; consent cannot cure jurisdictional defects.
Interim orders final at Court of Appeal
If the Court of Appeal issues a temporary order against your business, you cannot skip to the Supreme Court to challenge it. You must await the final decision in the Court of Appeal. Additionally, you cannot give the Supreme Court power to hear a case by mutual agreement.
Limited right to appeal
If you are in a legal dispute and the Court of Appeal makes a temporary ruling, you cannot go directly to the Supreme Court to overturn it. Wait for the main case to finish. Also, parties cannot grant the Supreme Court jurisdiction by consent.
Frequently asked questions
#Can I appeal a Court of Appeal interim order to the Supreme Court in Kenya?+
No. The Supreme Court ruled it cannot hear appeals from interim discretionary orders made by the Court of Appeal under Rule 5(2)(b). You must wait for the final judgment in the Court of Appeal.
Can parties agree to give the Supreme Court jurisdiction in Kenya?+
No. Jurisdiction is determined by the Constitution and laws, not by agreement. Even if both sides consent, the Supreme Court cannot hear a case it lacks legal authority to decide.
What is Rule 5(2)(b) of the Court of Appeal Rules in Kenya?+
It allows the Court of Appeal to grant temporary orders, like a stay of execution, pending an appeal. These orders are discretionary and cannot be appealed directly to the Supreme Court.
What happens after the Supreme Court strikes out an appeal for lack of jurisdiction in Kenya?+
The parties return to the Court of Appeal to pursue the main appeal. The Supreme Court's dismissal does not affect the substantive case still pending in the Court of Appeal.
Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kenya Aviation Workers Union v Kenya Airports Authority [2018] KEELRC 705 (KLR)[2018] KEELRC 705 (KLR)23 Oct 2018
Cite this brief
#Cite this brief
Caselaw, "Aviation & Airport Services Workers Union (Kenya) v Registrar of Trade Unions & Kenya Aviation Workers Union", Case Analysis (2019). Petition (Application) 3 of 2017. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2019/22/eng@2019-07-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.