Nation Media Group Limited v Kilonzo (Civil Application 102 of 2015) [2015] KECA 522 (KLR)
The bottom line
#Kenya's Court of Appeal paused a big employment case so judges can first decide whether a key Employment Act section used in unfair dismissal defences is constitutional.
What this practically means
#Executive summary
#Key legal issues
#Arguability of the intended appeal on the constitutionality of Section 45(3) of the Employment Act
The intended appeal raises an arguable point of law on whether Section 45(3) is unconstitutional, notwithstanding that the applicant is not directly appealing the Lenaola J decision but the ruling of Makau J adopting it.
The court noted prima facie divergent views among Employment & Labour Relations Court judges on the constitutionality of Section 45(3), citing Rika J in Danish Jalango and Radido J in Mercy Njoki Karingithi. Given this diversity, the constitutionality of the section and the effect of the Momanyi declaration were at the core of the intended appeal and therefore arguable.
Nugatory value and stay of further proceedings
The applicant's defence and intended appeal would be rendered nugatory if the constitutionality of Section 45(3) were not determined by an appellate court, warranting a stay of the trial proceedings.
The court held that the foundation and substratum of the applicant's defence was Section 45(3), so the declaration of unconstitutionality effectively removed its defence. Since the appeal's fate depended on that constitutional question, precedence had to be given to its determination, justifying a stay of the Labour Court proceedings pending appeal.
Retrospective effect of a declaration of unconstitutionality (noted but not determined)
The court declined to decide the merits of retrospectivity, quoting the Supreme Court's guidance in Mary Wambui Munene that declarations of invalidity operate retrospectively from the date of inception unless limited, on a case-by-case basis.
To avoid pre-empting the intended appeal, the court quoted extensively from the Supreme Court decision in Mary Wambui Munene, including its reliance on South African, Indian and Irish authority, on whether declarations of unconstitutionality operate retrospectively or prospectively, leaving the question open for the full appeal.
Legal principles established
#- A constitutional question with the potential to abridge an individual's right or entitlement should be given precedence in hearing and determination, and an appeal whose foundation rests on such a question will be rendered nugatory if the constitutional issue is not first determined on appeal.
- The thresholds under Rule 5(2)(b) for stay of proceedings are that the intended appeal is arguable and that, absent stay, it will be rendered nugatory.
Court orders
#- 1.Stay of further proceedings in Employment & Labour Relations Court Cause No. 2355 of 2012 (Onesmus Musyoki Kilonzo v Nation Media Group Limited) pending the hearing and determination of Civil Appeal No. 108 of 2015
- 2.Costs of the application to abide the outcome of Civil Appeal No. 108 of 2015
- On appeal from
- Employment & Labour Relations Court at Nairobi
- IND. C.C. No. 2355 of 2012
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules (application for stay of further proceedings pending appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nation Media Group Limited v Kilonzo (Civil Application 102 of 2015) [2015] KECA 522 (KLR)", Case Analysis (2015). Civil Application No. NAI. 102 of 2015 (UR 83/2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/522/eng@2015-07-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.