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Court of AppealPartially AllowedCivil Appeal (Application) No. 67 of 2010· [2014] KECA 636 (KLR)

Kenya Civil Aviation Authority & another v Rufus Njuguna & 67 others [2014] KECA 636 (KLR)

Court of Appeal of Kenya
4 April 2014
6,959 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~28 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed that employers must hear employees before dismissing them, and new limitation laws cannot be applied backwards to old disputes.

What this practically means

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Executive summary

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Five former employees of the defunct Directorate of Civil Aviation, suing for themselves and 63 others, obtained a High Court ruling (Anyara J, 7th November 2005, evidence heard by Emukule J) declaring their dismissal wrongful and a nullity, awarding salary arrears from 18th April 2002, compensation for unconstitutional arrest and prosecution, costs and interest. The Kenya Civil Aviation Authority and its Director-General C.A. Kuto appealed on twelve grounds, principally that the claim was time-barred under Section 7E(b) of the Civil Aviation Act Cap 394, that the originating summons was the wrong forum, that the respondents were Public Service Commission employees, that the second appellant enjoyed Section 5E immunity, and that the Deputy Registrar lacked jurisdiction to assess damages. The Court of Appeal first confirmed its own jurisdiction, holding that the limitation and notice provisions invoked did not apply retrospectively to events of March/April 2002 occurring before the 24th October 2002 amendment. It affirmed that the originating summons procedure and forum were proper, that the dismissal violated the rules of natural justice because the respondents were given only two days and no chance to be heard, and that the respondents became employees of the Authority upon the 2002 translation of service. Section 5E was held prospective and confined to personal, not official, liability, making the second appellant's liability joint and several. The Court found no mandate in Order 48 for the Registrar to assess damages, substituting assessment before a High Court Judge, and itself awarded each respondent Kshs. 50,000.00 for wrongful arrest, false imprisonment and malicious prosecution. Costs were left with the respondents in both courts.

Key legal issues

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01

Retrospective application of Sections 7E(b) and 5E of the Civil Aviation Act

Holding

Neither the twelve-month limitation period in Section 7E(b) nor the personal immunity in Section 5E applied to events occurring in March/April 2002, before the October 2002 amendment took effect, as no retroactive provision was cited

Reasoning

The cause of action arose before the amendment commencing on 24th October 2002. Counsel cited no provision making the amendment retroactive and the Court traced none. The Court adopted the same reasoning for Section 5E, holding it prospective only and confined to personal liability, not official liability.

p. 7
02

Procedure and forum - originating summons versus ordinary suit

Holding

The respondents' use of an originating summons for their constitutional and employment claims was proper; directions had been taken and the appellants never objected at the appropriate stages

Reasoning

Directions were taken before Makhandia J and the Chief Justice, the appellants were represented and never raised the objection in their replying affidavit or at the direction stages, and under Order 36 Rule 10 the court had jurisdiction to convert a case brought by originating summons. The claims for constitutional redress were properly laid.

p. 7
03

Wrongful dismissal and breach of natural justice

Holding

Although the respondents were wrong to engage in a go-slow strike, their dismissal was wrongful and a nullity because they were not given a chance to be heard before disciplinary action was taken

Reasoning

Public Service Regulations 26 to 32 required the employer to inform the employee of the charges before disciplinary action. The threat of dismissal was made on 6th April 2002 and carried out on 8th April 2002, giving the respondents no time to respond. These facts were not controverted.

p. 9
04

Identity of the employer

Holding

The respondents were employees of the Public Service as at 31st March 2002, and upon the 2002 amendment translating the Directorate into the Kenya Civil Aviation Authority they became employees of the first appellant, since their unlawful dismissal had been reversed by the Court

Reasoning

The trial Judge found the respondents, some formerly of the defunct East African Community, were absorbed into the Public Service under the Directorate of Civil Aviation. The amended Civil Aviation Act provided that employees of the Directorate as at 31st March 2002 automatically became employees of the new Authority. The Court found that reasoning well founded both on facts and the law.

p. 8
05

Assessment of damages by the Registrar/Deputy Registrar

Holding

Order 48 of the then Civil Procedure Rules conferred no mandate on the Registrar or Deputy Registrar to take over and determine a proceeding previously handled by a Judge, but this defect was curable and did not invalidate the relief

Reasoning

The Court found none of the administrative powers in Order 48 authorised the Registrar to perform the function assigned. The proper course was an interim decree followed by tabulations and representations on quantification before the final decree. The Court substituted an order that assessment take place before a High Court Judge.

p. 8
06

Compensation under Section 72(6) of the repealed Constitution for unlawful arrest and detention

Holding

The trial Judge was entitled to assess compensation under Section 72(6) for the admitted but unjustified arrest, detention and prosecution, but having failed to do so, the Court itself assessed Kshs. 50,000.00 per respondent

Reasoning

The fact of the arrest, prosecution and acquittal was admitted in the replying affidavit and no justification was demonstrated, amounting to a trespass on the respondents' constitutional liberties. The trial Judge inadvertently failed to assess the amount, an incomplete exercise of discretion which the Court cured by fixing a figure per respondent.

p. 10
07

Liability of the second appellant

Holding

Section 5E immunity did not protect the second appellant from official liability; his liability is joint and several with that of the first appellant and the Attorney General

Reasoning

Section 5E was introduced by the 2002 amendment and has no retrospective effect; it shields only from personal liability, not official liability. The second appellant, as chief executive who deponed the replying affidavit admitting the respondents were employees of the defunct Directorate, was properly cited, but his blameworthiness arose from execution of his official duties.

p. 9

Legal principles established

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  • A question of jurisdiction may be raised by a party or by the Court on its own motion and must be decided forthwith on the evidence before the Court
  • A limitation or immunity provision introduced by amendment (Sections 7E(b) and 5E of the Civil Aviation Act) does not apply retrospectively to acts committed before its commencement
  • On a first appeal the Court of Appeal is entitled to reappraise the evidence and draw its own conclusions on the facts
  • An employer must observe the rules of natural justice, including informing the employee of the charges and giving a chance to be heard, before taking disciplinary action
  • A court that finds a violation of fundamental rights may award compensation, including loss of salary arrears as compensation for inconvenience and distress, but not exemplary or punitive damages in such proceedings
  • A successful party is entitled to costs in the absence of special circumstances, for which reasons must be given

Court orders

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  1. 1.Grounds 1, 2, 3, 4, 7, 8, 9, 10, 11 and 12 of the appeal dismissed
  2. 2.The declaration that the dismissal of the respondents from the Public Service of the then Directorate of Civil Aviation was wrongful and a nullity is affirmed
  3. 3.The relief that the respondents be paid arrears of salary and other benefits dating back to 18th April 2002 is affirmed
  4. 4.The order that the exact amounts be assessed by the Registrar or Deputy Registrar is set aside and substituted with an order that the respondents file a schedule of arrears due to each respondent to form a basis for assessment before any other High Court Judge
  5. 5.The blanket relief under item 5 is set aside and each respondent awarded Kshs. 50,000.00 as compensation for wrongful arrest, false imprisonment and malicious prosecution
  6. 6.The orders of the learned Judge made on 7th November 2005 shall form a preliminary decree
  7. 7.Final decree to issue following compliance with items 3 and 4 above
  8. 8.The relief granted in item 9 is varied so that the liability of the appellants is joint and several
  9. 9.Interest on items 3 and 5 is granted at Court rates from the date of judgment in the High Court
  10. 10.The respondents to have costs both on appeal and in the High Court

Authorities

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Legislation

  • Constitution of Kenya (repealed)Section 72
  • Constitution of Kenya (repealed)Section 72(6)
  • Constitution of Kenya (repealed)Section 75
  • Constitution of Kenya (repealed)Section 71(1)(a)(b)(c)(d)
  • Civil Aviation Act, Chapter 394 Laws of KenyaSection 7E(b)
  • Civil Aviation Act, Chapter 394 Laws of KenyaSection 5E
  • Civil Aviation Act, Chapter 394 Laws of KenyaSection 5F
  • Civil Procedure Act, Chapter 21 Laws of KenyaSection 27(1)(2)
  • Civil Procedure Rules (repealed)Order 48
  • Civil Procedure RulesOrder 36 Rule 10 (formerly; now Order 37)
  • Civil Procedure RulesOrder 14 and Order 20 Rule 4
  • Court of Appeal Rules, 2010Rule 29(1)
  • Public Service RegulationsRegulations 26, 27, 28, 29, 30, 31 and 32
  • Employment Actnull
  • Civil Aviation Act, Chapter 394 Laws of KenyaSection 7 (e)(b) as argued by counsel

Cases cited (9)

  • Marete versus the Attorney General
    [1987] KLR 690
  • Selle and another versus Association Motor boat Company Limited and another
    [1968] EA 123
  • Abdul Hamed Saf Versus Ali Mohamed Shalon
    [1955] 22 EA CA 270
  • Owners of Motor Vessel Lilians Versus Caltex Oil (Kenya) Limited
    [1989] KLR 1
  • Great Lakes Transport Co. (U) Ltd versus Kenya Revenue Authority
    [2009] KLR 720
  • Ng'ati Co-operative Society Limited versus Councilor John Ledidi and 15 others
    Nakuru CA No. 64 of 2004 (ur)
  • Singh versus Urbanlite limited
    [1985] KLR 920
  • Mayfair Holdings Limited versus Ahmed
    [1990] KLR 667
  • Kariuki versus East African Industries Limited and another
    [1986] KLR 383
On appeal from
High Court of Kenya at Nairobi
Misc. Civil Case No. 1278 of 2004
Jurisdiction invoked
First appeal to the Court of Appeal under Rule 29(1) of the Court of Appeal Rules, 2010 (reappraisal of evidence and law from the High Court)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Kenya Civil Aviation Authority & another v Rufus Njuguna & 67 others [2014] KECA 636 (KLR)", Case Analysis (2014). Civil Appeal (Application) No. 67 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/636/eng@2014-04-04

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