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Court of AppealDismissedCivil Appeal No. 67 of 2015· [2016] KECA 411 (KLR)

Mutava & 2 others v Managing Director Kenya Ports Authority & another (Civil Appeal 67 of 2015) [2016] KECA 411 (KLR)

Court of Appeal
1 July 2016
ASAsike-MakhandiaWilliam OukoOukoM'M'Inoti
6,417 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 dismissed two port workers' appeal, confirming that employment disputes must go through statutory remedies, not constitutional petitions.

What this practically means

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Executive summary

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The Court of Appeal at Mombasa (Makhandia, Ouko and M'Inoti, JJA) dismissed an appeal against the Employment and Labour Relations Court's refusal to grant remedies to two Kenya Ports Authority Assistant Harbour Inspectors retired in public interest in 2005 without a hearing. The trial judge had found the terminations breached the KPA Staff Regulations and the rules of natural justice, but held the right to a hearing before termination was contractual, not constitutionally protected under the repealed Constitution, and that the dispute was private-law in nature requiring a plaint. On appeal, the Court held that the deceased second appellant's petition had abated because his estate was never substituted within twelve months and no revival application was made; a constitutional petition does not escape the Civil Procedure Rules. On the merits, the Court affirmed that where legislation provides a remedy, the statute, not the underlying constitutional right, is the primary means of enforcement, applying the Karume principle and the doctrine of constitutional avoidance. It further held that the 2010 Constitution and the Employment Act, 2007 could not be applied retrospectively to a 2005 termination, and endorsed the holding that courts cannot import rules of natural justice or constitutional hearing rights into written contracts of service. The Court observed the trial court erred in applying natural justice to the dispute, but as there was no cross-appeal, left that finding intact. The judgment binds lower courts to pursue statutory remedies first before constitutional litigation, and parties were left to bear their own costs.

Key legal issues

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01

Abatement of the deceased's petition for want of substitution

Holding

The claim by the deceased 2nd appellant abated by operation of law; no order of substitution or revival existed, so there was no petition before the trial court capable of determination

Reasoning

The deceased died on or about 11th August 2007. No substitution was effected within 12 months under Order 24 rule 3 of the Civil Procedure Rules. A mere application for substitution, unprosecuted, cannot amount to an order. Even if substitution had occurred, the suit having abated, an application for revival under Order 24 rule 7(2) was required; none was made. The argument that constitutional petitions are immune from the Civil Procedure Rules was rejected as self-defeating and absurd, per Peter Ochara Anam and Deynes Muriithi.

p. 4
02

Withholding remedies where the constitutional route was wrongly adopted

Holding

The trial court was right to decline remedies on the ground that the dispute was a labour matter that should have been brought by plaint or claim under the Employment Act then in force, not by constitutional petition

Reasoning

The court endorsed Harrikissoon, Bahadur, SA Naptosa, Mugendi and the Karume principle: where a statute provides a remedy, that remedy should be pursued, and the Constitution must not be trivialized as a general substitute. The contract of employment was the entry point; the Constitution should not be a thoroughfare for every common grievance. The trial court could have converted the petitions into a plaint, but the prayers sought militated against that.

p. 8
03

Retrospective application of the 2010 Constitution and Employment Act, 2007 to a 2005 termination

Holding

The trial court could not apply the current Constitution and the Employment Act, 2007 to a retirement effected in 2005; the claims were governed by the old Constitution and pre-2007 Employment Act, which did not extend the rules of natural justice or the Bill of Rights to contracts of employment

Reasoning

Statutes and constitutional provisions are prima facie prospective. The labour-relations provisions of the 2010 Constitution and the Employment Act, 2007 contain no retrospectivity. The court relied on Samuel Macharia on non-importation of retrospectivity and on Kenya Revenue Authority v Menginya Salim Murgani holding that courts cannot import rules of natural justice or constitutional hearing rights into written contracts of service. The Gladys Boss Shollei and Tunoi cases were inapplicable.

p. 8
04

Whether the trial court's findings were against the weight of the evidence

Holding

This ground failed; the trial court was found to have considered all the material and arrived at a just decision

Reasoning

The Petitions had been disposed of on pleadings and written submissions only, so there was no evidential weight for the complaint to rest on. The court noted, however, that the trial court itself erred in applying the rules of natural justice to the dispute, but as there was no cross-appeal, the Court of Appeal would leave that finding undisturbed.

p. 10

Legal principles established

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  • Where legislation regulates a fundamental right, that legislation, not the underlying constitutional right, is the primary means of enforcing the right, and parties must use statutory remedies before invoking the Constitution
  • Where there is a clear procedure prescribed by the Constitution or an Act of Parliament for redress of a grievance, that procedure must be strictly followed
  • The principle of constitutional avoidance requires a court to decide a case on a non-constitutional basis where that is possible
  • A suit by a deceased plaintiff abates if no application for substitution is made within one year of death; the only remedy thereafter is an application for revival under Order 24 rule 7(2), and a constitutional petition does not escape the Civil Procedure Rules
  • A constitutional petition is civil in nature and the Civil Procedure Act and Rules and rules of evidence apply to it in the absence of specific rules
  • Statutes, and constitutional provisions, are prima facie prospective and will not be applied retrospectively absent express words or necessary implication

Court orders

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  1. 1.The appeal is dismissed
  2. 2.Each party to bear their own costs

Authorities

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Legislation

  • Constitution of Kenya (repealed)Section 77
  • Constitution of Kenya (repealed)Section 74(1)
  • Constitution of Kenya (repealed)Section 70(a)
  • Constitution of Kenya (repealed)Section 82(2)
  • Constitution of Kenya, 2010Article 162(2)(a)
  • Constitution of Kenya, 2010Article 50
  • Civil Procedure RulesOrder 24 rule 3
  • Civil Procedure RulesOrder 24 rule 7(2)
  • Employment Act, 2007Sections 41, 43 and 45
  • Employment Act (pre-2007)
  • Kenya Ports Authority Revised Staff Regulations, 2002Sections G8 and G12(a); Section A.2(a)

Cases cited (23)

  • John Chege Mwangi & 3 Others v Obadiah Kiritu Methu
    [2012] eKLR
  • Catherine Atieno Okongo & Another v John Mwangi Karanja & Another
    [2015] eKLR
  • Peter Ochara Anam & 3 others v The Constituencies Development Fund Board & 4 Others
    [2011] eKLR
  • Deynes Muriithi & 4 Others v Law Society of Kenya & Another
    [2016] eKLR
  • Judicial Service Commission v Gladys Boss Shollei & Another
    [2014] eKLR
  • Philip K. Tunoi & Another v Judicial Service Commission & another
    [2014] eKLR
  • Ridge v Baldwin
    [1964] AC 40
  • Daniel Nyongesa & 4 others v Egerton University College
    [1992] 623
  • Kadamas v Municipality of Kisumu
    [1985] KLR 95
  • Onyango Oloo v Attorney General
    [1986-89] E.A. 456
  • Republic v Kenya Airports Authority & Another Ex parte Moses Echwa
    [2015] eKLR
  • GMV v Bank of Africa Kenya Ltd
    [2013] eKLR
  • Kenya Revenue Authority v Menginya Salim Murgani
    [2010] eKLR
  • Harrikissoon v Attorney General
    [1980] AC 265
  • Re Application by Bahadur
    [1986] LRC (Const) 297
  • SA Naptosa & Others v Minister of Education Western Cape & others
    [2001] BLLR 338
  • Daniel N. Mugendi v Kenyatta University & 3 Others
    [2013] eKLR
  • Alphonse Mwangemi Munga & Others v African Safari Club Ltd
    [2008] eKLR
  • Speaker of the National Assembly v James Njenga Karume
    [1992] eKLR
  • Communications Commission of Kenya & 5 Others v Royal Media Services & 5 Others
    Petition No. 14, 14A, B & C of 2014
  • S v. Mhlungu
    1995 (3) SA 867 (CC)
  • Ashwander v. Tennessee Valley Authority
    297 U.S. 288 (1936)
  • Samuel Macharia & Another v Kenya Commercial Bank Limited & 2 others
    [2012] eKLR
On appeal from
Employment and Labour Relations Court of Kenya at Mombasa
E.L.R.C. Pet. No. 2 of 2015 & Pet. No. 3 of 2015
Jurisdiction invoked
First appellate jurisdiction over the Employment and Labour Relations Court; the judgment does not invoke a specific constitutional appellate provision

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (10)

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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, "Mutava & 2 others v Managing Director Kenya Ports Authority & another (Civil Appeal 67 of 2015) [2016] KECA 411 (KLR)", Case Analysis (2016). Civil Appeal No. 67 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/411/eng@2016-07-01

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