Ndutu & 600 others v Kenya Breweries Ltd & another (Civil Application 291 of 2011) [2012] KECA 8 (KLR)
The bottom line
#Kenya's Court of Appeal paused a large representative employment case because members had the right to choose their own lawyer and even to opt out.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicants' appeal or intended appeal is arguable
- 2.Whether, absent a stay or injunction, the success of the appeal would be rendered nugatory
- 3.Whether the issue of legal representation of parties to a representative suit under Order 1 Rule 8 ought to be determined before the main suit proceeds
Key legal issues
#Whether the issue of legal representation in a representative suit under Order 1 Rule 8 raises arguable points warranting a stay
Yes; the question whether an interested party who shares a commonality of interest may opt out and file separate pleadings is arguable, justifying a stay of the High Court ruling pending appeal.
The Court noted Kenya has no specific class-suit legislation beyond Order 1 Rule 8, which speaks of representation of 'all except one or more of them'. Since a person may choose to join a representative suit, one may equally opt out without forfeiting the right to separate recourse. Counsel's choice of representation is a fair-trial right. The Court held that the suit could not practically proceed before representation was resolved, and that a stay was needed to avoid the suit concluding without proper representation of some parties.
Scope of the Court's jurisdiction under Rule 5(2)(b)
The jurisdiction is original and restricted; prayers outside a stay of execution, injunction or stay of proceedings fall outside the Rule and were locked out.
The Court held it must strictly confine itself to the restricted jurisdiction conferred by Rule 5(2)(b), which permits only a stay of execution, an injunction or a stay of further proceedings in civil matters where a notice of appeal has been lodged. This inevitably excluded most of the prayers sought by the applicants, which were outside the ambit or purview of the Rule.
Legal principles established
#- An applicant under Rule 5(2)(b) must first show that the appeal is arguable, and secondly that the appeal would be rendered nugatory absent a stay or injunction.
- An applicant need only establish one arguable point to succeed on a Rule 5(2)(b) application.
- A party affected by a representative suit has a choice whether to join it, and may opt out without forfeiting the right to seek recourse separately.
- Every litigant has a right to be represented by counsel of their own choice, a tenet of a fair trial.
Court orders
#- 1.An order of stay of the ruling and orders of the Hon. Lady Justice Mary Ang'awa given on 16th December, 2011 in Nairobi H.C.C.C No. 279 of 2003 pending the hearing and determination of the appeal
- 2.Costs of the motion to be in the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- H.C.C.C. No. 279 of 2003
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Relief refused
#Prayers sought beyond the stay of proceedings, including injunction as against the High Court ruling
The Court's jurisdiction under Rule 5(2)(b) is original and restricted; most prayers were outside its ambit
Costs
Costs of this motion will be in the appeal.
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.
An order of stay of the ruling and orders of the Hon. Lady Justice Mary Ang’awa given on 16 th December, 2011 in Nairobi H.C.C.C No. 279 of 2003 is hereby granted pending the hearing and determination of the appeal.
An applicant need not show more than one arguable point in order to succeed in his application.
Prima facie, one can only deduce that if one has an option to join the suit, then one should have an equal right to opt out of the suit without forfeiting his/her right to seek recourse separately.
They do definitely have a right to be represented by counsel of their own choice. That is one of the tenets of a fair trial.
The notice of motion succeeds only to that extent.
Issues in the judgment
#The cause number of the suit in the High Court appears inconsistently as H.C.C.C. No. 279 of 2003 in the heading and as Nairobi H.C.C.C No. 279 of 2000 in the body.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ndutu & 600 others v Kenya Breweries Ltd & another (Civil Application 291 of 2011) [2012] KECA 8 (KLR)", Case Analysis (2012). Civil Application No. NAI. 291 of 2011 (UR 192/2011). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2012/8/eng@2012-04-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.