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Court of AppealAllowedCivil Appeal No. 15 of 2015· [2015] KECA 524 (KLR)

JMK v MWM & another [2015] KECA 524 (KLR)

Court of Appeal of Kenya
17 July 2015
ASAsike-MakhandiaWilliam OukoW. OukoKMK. M'inoti
4,858 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal confirmed that courts cannot condemn anyone's reputation without hearing them first, even if they were never formally a party to the case.

What this practically means

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Executive summary

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The appellant, JMK, former Managing Director and CEO of MFS, appealed a ruling of the Industrial Court at Mombasa (Makau J.) declining to review and set aside a judgment of 30th May 2014 that found, without hearing him, that he had sexually harassed the 1st respondent, MWM, and awarded her Kshs 500,000 against her employer. The appellant was never a party to the claim; the allegations were introduced by amendment after he had resigned, and he learned of the judgment through a newspaper report. His application to be joined and for review was dismissed on the grounds that the court could not join a party after judgment and that his complaint belonged in an appeal. The Court of Appeal allowed the appeal. It held that although joinder under Order 1 Rule 10(2) is confined to pending proceedings, the appellant's application was substantially one for review under section 16 of the Industrial Court Act and Rule 32 of the Procedure Rules, which confer broad review jurisdiction. A person directly affected by a claim is deemed a party and may be an aggrieved person entitled to seek review. The court emphasised that condemnation of a person as a sexual harasser without a hearing breached the audi alteram partem principle and Article 50(1), and that protection of reputation warrants a hearing of one's own right, not merely as another party's witness. The court set aside the ruling of 3rd October 2014, allowed the appellant's application, reviewed and set aside the judgment of 30th May 2014, and ordered the claim to be heard de novo before a judge other than Makau J. Each party was ordered to bear their own costs.

Key legal issues

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01

Whether the Industrial Court erred in declining to review and set aside its judgment condemning the appellant unheard

Holding

The court ought to have reviewed and set aside its judgment of 30th May 2014 to afford the appellant an opportunity to be heard; the right to a fair hearing under Article 50(1) applied to him despite not being a party.

Reasoning

The judgment directly affected the appellant by finding him a sexual harasser, damaging his reputation even though damages were not payable by him. The loss of reputation is as important as a monetary award. The Industrial Court had wide review jurisdiction under section 16 and Rule 32, and breach of the constitutional right to be heard constituted sufficient reason for review. The audi alteram partem principle required that he be heard of his own right.

p. 8
02

Whether the appellant was an 'aggrieved person' entitled to apply for review despite not being a party

Holding

Yes; the rules define 'party' to include a person directly affected by a claim, so the appellant could apply for review.

Reasoning

Rule 32(1) allows a person aggrieved by a decree or order to apply for review. The rules do not define 'aggrieved person' but define 'party' broadly to include any person directly involved or affected by a claim. A person directly affected is deemed a party and can be an aggrieved party for review purposes. The court also doubted whether the appellant could have appealed when he was not a party to the suit.

p. 6
03

Whether joinder under Order 1 Rule 10(2) was available after judgment

Holding

No; joinder under Order 1 Rule 10(2) is available only in pending proceedings, but the appellant's application was not solely for joinder - it was also for review and setting aside, which the court could grant.

Reasoning

Order 1 Rule 10(2) applies where proceedings are pending; by the time of the application, judgment had been delivered and there were no pending proceedings. However, the appellant's application sought review and setting aside of the judgment and a de novo hearing, which fell within the court's review jurisdiction. The learned judge properly found the court had jurisdiction to review but erred in declining to exercise it.

p. 5

Legal principles established

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  • A person directly affected by a claim to which the Industrial Court has taken cognizance is deemed a party and may apply for review under Rule 32 even if not formally joined as a party.
  • A person whose reputation is directly and adversely affected by a judicial finding is entitled to be heard of his own right, not merely as another party's witness, before such a finding is made.
  • The Industrial Court's review jurisdiction under section 16 of the Industrial Court Act read with Rule 32 is broader than the High Court's under Order 45 of the Civil Procedure Rules, and condemnation of a person without a hearing constitutes sufficient reason for review.
  • Order 1 Rule 10(2) of the Civil Procedure Rules contemplates joinder of parties only in pending proceedings; it does not apply after final judgment.

Court orders

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  1. 1.Appeal allowed
  2. 2.Ruling and order of the Industrial Court dated 3rd October 2014 set aside
  3. 3.Substituted therefor an order allowing the appellant's application dated 10th June 2014
  4. 4.Judgment of the Industrial Court dated 30th May 2014 reviewed and set aside
  5. 5.1st respondent's claim to be heard de novo before any judge of the Industrial Court other than Makau, J.
  6. 6.Each party to bear their own costs

Authorities

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Legislation

  • Constitution of KenyaArticle 50(1)
  • Employment Actsection 6
  • Industrial Court Actsection 16
  • Industrial Court (Procedure) Rules, 2010Rule 32(1), Rule 36(6)
  • Civil Procedure Rules, 2010Order 1 Rule 10(2); Order 45
  • Statute Law (Miscellaneous) Amendment Act, 2014null

Cases cited (10)

  • ONYANGO V. ATTORNEY GENERAL (1986-1989) EA 456
    (1986-1989) EA 456
  • KENNETH KIPKEMBOI SETTIM & ANOTHER V. NATIONAL SOCIAL SECURITY FUND BOARD OF TRUSTEES, ICC No. 204 of 2011
    ICC No. 204 of 2011
  • RENO V. BAIRD (S065473)
    S065473
  • STATE DEPARTMENT OF HEALTH SERVICES V. THE SUPERIOR COURT OF SACRAMENTO COUNTY (S103487)
    S103487
  • CENTRAL KENYA LTD. V. TRUST BANK & 4 OTHERS, CA NO. 222 OF 1998
    CA No. 222 of 1998
  • TANG GAS DISTRIBUTORS LTD V. SAID & OTHERS [2014] EA 448
    [2014] EA 448
  • MBAKI & OTHERS V. MACHARIA & ANOTHER (2005) 2 EA 206
    (2005) 2 EA 206
  • Rosenblatt v Baer (1966) 382(US) 75
    382 US 75
  • Hill v Church of Scientology [1991] 126 DLR 129
    [1991] 126 DLR 129
  • Reynolds v. Times Newspapers Ltd [1999] 4 All ER 609
    [1999] 4 All ER 609
On appeal from
Industrial Court of Kenya (now Employment & Labour Relations Court) at Mombasa
I.C.C. No. 268 of 2013
Jurisdiction invoked
First appellate appeal from the Industrial Court (Industrial Court Act) - no Article 163(4)(a) basis; appeal as of right on facts and law

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (25)

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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, "JMK v MWM & another [2015] KECA 524 (KLR)", Case Analysis (2015). Civil Appeal No. 15 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/524/eng@2015-07-17

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