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Court of AppealDismissedCivil Application No. 31 of 2015· [2016] KECA 409 (KLR)

Kenfreight (E.A) Limited v Benson K. Nguti [2016] KECA 409 (KLR)

Court of Appeal
1 July 2016
ASAsike-MakhandiaWilliam OukoW. OukoKMK. M'inoti
3,143 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 refused to let Kenfreight take its unfair termination case to the Supreme Court, ruling the legal question was already settled.

What this practically means

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Executive summary

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Kenfreight (E.A) Limited, having lost its appeal against an ELRC award of 12 months' gross salary to Benson K. Nguti for unfair termination, sought two orders from the Court of Appeal: leave/certification to appeal to the Supreme Court and a stay of execution. The application invoked Articles 163(3)(b) and 163(4)(b) of the Constitution, the Supreme Court Act and Rules, and Sections 3A and 3B of the Appellate Jurisdiction Act. The applicant argued there were conflicting Court of Appeal decisions on damages for termination under a contractual notice period - the present appeal versus CMC Aviation v Captain Mohamed Noor - creating uncertainty of general public importance. The respondent contended the matter raised no general public importance, the law being settled by statute, and that CMC turned on its own peculiar facts. The Court (Makhandia, Ouko and M'inoti, JJ.A.) applied the Steyn criteria as restated in Mtana Lewa v Kahindi Ngala Mwagadi and supplemented in Town Council of Awendo. It analysed the CMC judgment and found that the court there interfered only because the trial judge had failed to exercise his discretion judiciously under sections 49(1)(c) and 49(4) of the Employment Act, whereas in the present case the 12 months' award was upheld because the trial judge's discretion was judiciously exercised, considering the respondent's rank, employability and the employer's conduct. The Court held there were no conflicting decisions warranting Supreme Court intervention; the intended appeal would raise a settled question of law on the exercise of discretion. The application was dismissed with no orders as to costs.

Key legal issues

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01

Certification of a matter of general public importance for appeal to the Supreme Court

Holding

The intended appeal raised no matter of general public importance; the question of law it would raise (exercise of judicial discretion) is well settled

Reasoning

Applying the Steyn criteria as restated in Mtana Lewa and supplemented in Town Council of Awendo, the Court found that the applicant's grievance turned on the settled principles for interfering with a trial court's exercise of discretion. The alleged conflict between the instant decision and the CMC case was illusory: CMC turned on the trial court's failure to exercise its discretion judiciously under section 49(4), while the instant case upheld a discretion exercised judiciously. Each case turns on its own facts.

p. 5
02

Alleged conflicting decisions of the Court of Appeal on damages for unfair termination

Holding

There was no real conflict between the instant decision and the CMC case warranting Supreme Court intervention

Reasoning

The Court examined the CMC judgment and found that the award there was disturbed because the trial court failed to give reasons for exercising its discretion under section 49(1)(c) and did not consider section 49(4). In the present case, the trial judge's award of 12 months' gross salary was upheld because the discretion was exercised judiciously, having considered the respondent's rank, employability, and the employer's conduct. The differing outcomes flowed from different facts, not divergent statements of law.

p. 5

Legal principles established

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  • An appeal from the Court of Appeal to the Supreme Court under Article 164(4)/163(4)(b) requires certification that the appeal raises a matter of general public importance, which must transcend the circumstances of the particular case and bear significantly on the public interest
  • An appellate court may only interfere with the exercise of discretion of a trial court where the lower court was clearly wrong owing to misdirection or failure to consider relevant matters
  • Where the application is made first in the Court of Appeal, the Court applies the criteria for general public importance set out in Hermanus Phillipus Steyn and elaborated in Mtana Lewa v Kahindi Ngala Mwagadi and Town Council of Awendo v Nelson Oduor Onyango

Court orders

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  1. 1.The application for certification/leave to appeal to the Supreme Court is dismissed
  2. 2.No orders as to costs

Authorities

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Legislation

  • Constitution of KenyaArticle 163(3)(b)
  • Constitution of KenyaArticle 163(4)(b)
  • Constitution of KenyaArticle 164(4)
  • Supreme Court ActSections 15 and 16
  • Supreme Court RulesRules 24(1) and 31(2)
  • Appellate Jurisdiction ActSections 3A and 3B
  • Employment Act, 2007Sections 35, 41, 43, 45, 49, 49(1)(a), 49(1)(b), 49(1)(c), 49(4)

Cases cited (8)

  • CMC Aviation v Captain Mohamed Noor
    Civil Appeal No. 199 of 2013
  • Sum Model Industries Ltd v Industrial and Commercial Development Corporation
    SC Civil Application No. 1 of 2011
  • Mtana Lewa v Kahindi Ngala Mwagadi
    Civil Application No. 16 of 2016 (2016) eKLR
  • Hermanus Phillipus Styen case
  • Malcolm Bell case
  • Town Council of Awendo v Nelson Oduor Onyango & 13 others
    [2015] eKLR
  • Mbogo & Another v Shah
    [1968] EA 93
  • Matiba v Moi & 2 Others
    [2008] 1 KLR 670
On appeal from
Industrial Court of Kenya / Employment and Labour Relations Court at Mombasa
I.C.C No. 146 of 2013
Jurisdiction invoked
Article 164(4) of the Constitution; application premised on Articles 163(3)(b) and (4)(b), Sections 15 and 16 of the Supreme Court Act, Rules 24(1) and 31(2) of the Supreme Court Rules, Sections 3A and 3B of the Appellate Jurisdiction Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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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, "Kenfreight (E.A) Limited v Benson K. Nguti [2016] KECA 409 (KLR)", Case Analysis (2016). Civil Application No. 31 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/409/eng@2016-07-01

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