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Supreme CourtStruck OutPetition 4 of 2015

Aviation & Allied Workers Union of Kenya v Kenya Airways Limited & 3 others

Supreme Court of Kenya
28 July 2017
Philomena Mbete MwiluPhilomena MwiluMohammed Khadhar IbrahimM.K. IbrahimJackton Boma OjwangJ.B. OjwangSmokin Charles WanjalaS.C. WanjalaIsaac LenaolaI Lenaola
5,135 words in judgment
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·~21 min to read original · ~4 min brief

The bottom line

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Supreme Court cannot hear appeals unless the case actually interpreted the Constitution.

What this practically means

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The Supreme Court of Kenya struck out an appeal by the Aviation & Allied Workers Union against Kenya Airways. The union wanted the court to review a redundancy dispute, but the court said it lacked jurisdiction. For the Supreme Court to hear an appeal, the lower courts must have interpreted or applied specific constitutional provisions. In this case, the Industrial Court and Court of Appeal focused on the Employment Act and Labour Relations Act, not the Constitution. The union's general references to constitutional rights were not enough to give the Supreme Court power to hear the case.

Executive summary

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The Supreme Court of Kenya considered an appeal by the Aviation & Allied Workers Union Kenya against Kenya Airways Limited and three others. The appeal arose from a redundancy dispute where 447 employees were retrenched. The Industrial Court had ordered reinstatement with back pay, but the Court of Appeal set aside that order, awarding damages instead. The appellant sought to appeal to the Supreme Court under Article 163(4)(a) of the Constitution, arguing that the case involved constitutional interpretation of Articles 10, 41, and 2(5)-(6). The respondents raised a preliminary objection, contending that the Supreme Court lacked jurisdiction because the dispute was primarily about statutory interpretation of the Employment Act and Labour Relations Act, not constitutional interpretation. The Supreme Court upheld the preliminary objection. It applied its established jurisprudence from cases like Lawrence Nduttu, Hassan Ali Joho, and Gatirau Peter Munya, holding that for an appeal to lie as of right under Article 163(4)(a), the case must have involved the interpretation or application of the Constitution in the courts below. The court found that the Industrial Court and Court of Appeal had focused on redundancy under the Employment Act, and their references to the Constitution were only to incorporate its spirit and values, not to interpret specific provisions. The court also rejected the appellant's argument that employment disputes inherently involve constitutional rights, stating that such a general proposition cannot confer jurisdiction. Consequently, the Supreme Court struck out the appeal and ordered each party to bear their own costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.whether the appeal meets the jurisdictional threshold under article 163(4)(a) of the Constitution
  2. 2.whether the Court of Appeal properly arrived at its conclusion, with regard to the remedy for the appellant, in the circumstances of the case
  3. 3.whether the Court of Appeal should have remitted the matter to the Employment and Labour Court for assessment of damages
  4. 4.what remedy is merited

Key legal issues

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01

Whether the Supreme Court has jurisdiction under Article 163(4)(a) to hear an appeal from the Court of Appeal where the dispute primarily concerned statutory interpretation of the Employment Act and Labour Relations Act, with only tangential references to the Constitution.

Holding

The Supreme Court lacks jurisdiction under Article 163(4)(a) because the case did not involve constitutional interpretation or application; the references to the Constitution were only to incorporate its spirit, values and principles, not to interpret specific clauses.

Reasoning

The court examined the proceedings in the Industrial Court and Court of Appeal, finding that the core issues were about redundancy under the Employment Act and Labour Relations Act. Although the Industrial Court mentioned Articles 10 and 41 of the Constitution, it did so only in broad terms to reflect the new constitutional order, not to interpret those provisions. The Court of Appeal similarly focused on statutory provisions. The Supreme Court held that 'interpretation' or 'application' of the Constitution requires a task that 'transcends just the reference to the rich generality of constitutional principle' and must focus on specific clauses, attributing 'requisite meaning, tenor and effect.' Since the appellant failed to show how the lower courts incorrectly interpreted or applied any constitutional provision, the appeal did not meet the jurisdictional threshold.

p. 2
02

Whether the appellant's argument that employment disputes inherently involve constitutional rights under Article 41 can confer jurisdiction on the Supreme Court under Article 163(4)(a).

Holding

A general proposition that employment disputes touch on fundamental rights does not, by itself, confer jurisdiction on the Supreme Court; each case must be evaluated on its own merit to determine if constitutional interpretation or application was actually in issue.

Reasoning

The appellant argued that redundancy affects dignity and social security, rights protected under the Bill of Rights, and thus the case necessarily involved constitutional interpretation. The Supreme Court rejected this, stating that 'such a general proposition cannot in and of itself, confer upon a litigant standing before this court, as each case bears its unique facts, and must be evaluated on its individual merit.' The court found that the lower courts had not delved into constitutional interpretation, and the appeal did not raise a genuine constitutional question for the first time before the Supreme Court.

p. 12

Legal principles established

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  • An appeal to the Supreme Court under Article 163(4)(a) requires the case to have involved interpretation or application of the Constitution in the lower courts.
  • Mentioning constitutional values broadly does not count as constitutional interpretation; specific clauses must be analyzed.
  • A general claim that employment disputes touch on constitutional rights does not automatically give the Supreme Court jurisdiction.
  • Each case is evaluated on its own facts to determine if constitutional interpretation was actually at issue.
  • The Supreme Court will not hear appeals that only involve statutory interpretation, even if the Constitution is referenced in passing.

Court orders

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  1. 1.The preliminary objection, as to the jurisdiction of this court to determine the notice of motion application dated August 13, 2015 is hereby upheld.
  2. 2.The petition of appeal dated May 19, 2015 is hereby struck out.
  3. 3.Each party to bear their own costs.

The bench

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One judgment of the whole court — no separate or dissenting opinions.

Philomena Mbete Mwilu
Philomena MwiluDCJ
Currently serving
majority
Mohammed Khadhar Ibrahim
majority
Jackton Boma Ojwang
majority
Smokin Charles Wanjala
S.C. WanjalaSCJ
Currently serving
majority
Isaac Lenaola
I LenaolaSCJ
Currently serving
majority
On appeal from
Court of Appeal at Nairobi
Civil Appeal No 46 of 2013
Jurisdiction invoked
Article 163(4)(a) of the Constitution of Kenya, 2010

Relief refused

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Appeal on merits

The Supreme Court lacked jurisdiction under Article 163(4)(a) as the case did not involve constitutional interpretation or application.

p. 13

Costs

Each party to bear their own costs.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The appeal must originate from a Court of Appeal case where issues of contestation revolved around the interpretation or application of the Constitution.
p. 8 Jurisdiction of the Supreme Court under Article 163(4)(a)
At no point in either of the superior court's judgment, did the question of constitutional interpretation or application arise.
p. 2 Lack of constitutional interpretation in the courts below
The preliminary objection, as to the jurisdiction of this court to determine the notice of motion application dated August 13, 2015 is hereby upheld.
p. 13 Final order upholding preliminary objection on jurisdiction
The petition of appeal dated May 19, 2015 is hereby struck out.
p. 13 Final order striking out the appeal
Each party to bear their own costs.
p. 13 Costs order

Key timeline

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2015-05-19
Aviation & Allied Workers Union filed a petition of appeal to the Supreme Court.
2015-08-13
Kenya Airways and others filed a preliminary objection challenging the Supreme Court's jurisdiction.
2017
Supreme Court upheld the preliminary objection and struck out the appeal.

Practical implications

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For lawyers

Draft appeals with constitutional specificity

When appealing to the Supreme Court under Article 163(4)(a), ensure the lower court record shows that specific constitutional provisions were interpreted or applied. Avoid relying on general references to constitutional values. If the case primarily involves statutes like the Employment Act, consider alternative remedies or frame constitutional issues clearly from the start.

For businesses

Employment disputes rarely reach Supreme Court

This ruling confirms that most employment cases, even those involving redundancy, will not be heard by the Supreme Court unless they involve a genuine constitutional question. Businesses can expect finality at the Court of Appeal level for statutory employment disputes. This reduces the risk of prolonged litigation and allows for earlier resolution of labor matters.

For individuals

Know your appeal options in Kenya

If you lose a case about employment rights, you cannot automatically appeal to the Supreme Court just because you mention the Constitution. The Supreme Court only hears cases where the lower courts actually interpreted constitutional clauses. For most employment disputes, the Court of Appeal is the final stop. Consult a lawyer to understand your specific appeal rights.

Frequently asked questions

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Can I appeal my employment case to the Supreme Court in Kenya?+

Only if your case involved the interpretation or application of specific constitutional provisions in the lower courts. General references to constitutional rights are not enough. Most employment disputes under the Employment Act end at the Court of Appeal.

What does Article 163(4)(a) of the Kenyan Constitution mean for appeals?+

It allows appeals to the Supreme Court as of right only from cases that involved the interpretation or application of the Constitution. The Supreme Court has clarified that this requires the lower courts to have analyzed specific constitutional clauses, not just mentioned constitutional values broadly.

Why did the Supreme Court strike out the Aviation Union's case against Kenya Airways?+

Because the case was about redundancy under the Employment Act and Labour Relations Act, not constitutional interpretation. The union argued that employment rights are constitutional, but the court said that general proposition does not give it jurisdiction. The lower courts had not interpreted any specific constitutional provision.

What happens if my case is struck out by the Supreme Court in Kenya?+

The case ends, and you cannot appeal further. In this case, each party paid their own costs. You may need to accept the Court of Appeal decision or explore other legal remedies, but the Supreme Court will not hear the matter if it lacks jurisdiction.

Later judgments citing this (22)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Aviation & Allied Workers Union of Kenya v Kenya Airways Limited & 3 others", Case Analysis (2017). Petition 4 of 2015. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2017/11/eng@2017-07-28

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.