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Court of AppealDismissedCivil Appeal No. 95 of 2013· [2017] KECA 141 (KLR)

Momanyi v Sdv Transami Kenya Ltd (Civil Appeal 95 of 2013) [2017] KECA 141 (KLR)

Court of Appeal
17 November 2017
6,291 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 ruled that winning a constitutional challenge to a law cannot reopen employment claims already finally decided under that law.

What this practically means

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Executive summary

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The appellant, employed by the respondent for 11 months and 27 days before termination on 27th February 2010, filed a claim in the Industrial Court for unfair termination compensation and other dues. On a preliminary objection, Rika, J. on 10th December 2010 struck out the claim for 12 months' compensation under section 45(3) of the Employment Act, 2007, which barred complaints of unfair termination by employees with less than 13 months' continuous service, while sustaining the remaining claims. The appellant then petitioned the High Court, where Lenaola, J. on 18th May 2012 declared section 45(3) inconsistent with Articles 28, 41(1), 47, 48 and 50(1) of the Constitution, but refused to review the Industrial Court ruling. The appellant then sought review of the Industrial Court ruling, which was dismissed on 27th February 2013 on the basis that the High Court judgment applied only to claims filed after 18th May 2012. The Court of Appeal dismissed the appeal, holding that the Industrial Court correctly applied the law as it then stood; that a declaration of unconstitutionality is a matter of law and not 'sufficient reason' for review under rule 32(1)(e); and that retrospective effect of a judicial decision is excluded from cases already finally determined. The judgment binds lower courts on the prospective operation of declarations of invalidity of statutes predating the 2010 Constitution and the limits of the review jurisdiction.

Key legal issues

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01

Whether the High Court's declaration of unconstitutionality constituted 'sufficient reason' for review under rule 32(1)(e)

Holding

No. The grounds for review, analogous to Order 45 rule 1 of the Civil Procedure Rules, relate to discovery of new facts, not issues of law. A subsequent declaration of unconstitutionality is a matter of law which the court is deemed to know and cannot found a review.

Reasoning

The Court relied on its earlier decision in Pancras T. Swai v Kenya Breweries Ltd, holding that review under the rule concerns factual discoveries, mistakes or errors apparent on the record, or breach of written law at the time. The High Court's declaration did not create new matter or an error on the face of the record; it was a change in the law which could not be a basis for review of an earlier ruling correctly applying then-existing law.

p. 8
02

Whether the High Court declaration applied retrospectively to the appellant's already-determined preliminary objection

Holding

No. Section 45(3) was valid law until declared unconstitutional on 18th May 2012; the declaration could not revive or reopen claims already finally determined before that date.

Reasoning

The Court endorsed the common law position approved by the Supreme Court in Mary Wambui Munene v Peter Gichuki King'ara, quoting Murray CJ in A v Governor of Arbour Hill Prison: a decision applies retrospectively to pending and future cases but not to finally determined ones. Since the Employment Act predated the 2010 Constitution, the invalidity could not date back to the promulgation of the Constitution; that would only apply to statutes enacted after the Constitution.

p. 4
03

Whether the Industrial Court was bound to implement the High Court's declaration suo motu

Holding

No. The Industrial Court was entitled to determine the effect of the declaration, including its effective date, and could not be compelled to reinstate the claim merely on service of the declaration.

Reasoning

The Court held the Industrial Court rightly concentrated on the issue of retrospectivity, which the High Court had not addressed. Whether to allow review is an unfettered discretion, and the Industrial Court's reasoning - avoiding reopening concluded claims and preserving legal certainty - was sound. The settled Mrao Ltd guidelines for interference with discretion were not met.

p. 8

Legal principles established

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  • A declaration of unconstitutionality of a pre-2010 Constitution statute applies only prospectively to claims filed after the declaration; it does not unsettle vested rights or revive claims already determined, since such a statute remains law until declared invalid.
  • A declaration of unconstitutionality is not a ground for review: 'sufficient reason' for review relates to issues of fact, not to issues of law or a subsequent change in the law.
  • The retrospective effect of a judicial decision is excluded from cases already finally determined; it may be relied upon only in matters not yet finally determined.
  • A court must apply the law as it prevailed at the time of the decision before it, and the grounds for interfering with the exercise of judicial discretion (Mrao Ltd v First American Bank) remain the settled test.

Court orders

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  1. 1.Appeal dismissed with no order as to costs.

Authorities

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Legislation

  • Employment Act, 2007section 35(5)
  • Employment Act, 2007section 35(6)
  • Employment Act, 2007section 41
  • Employment Act, 2007section 45(3)
  • Labour Institutions Act, 2007section 12
  • Retirement Benefits Actnull
  • Industrial Court Act, No. 20 of 2011section 12(3)(vii)
  • Industrial Court Act, No. 20 of 2011section 16
  • Industrial Court (Procedure) Rules, 2010rule 32(1)
  • Industrial Court (Procedure) Rules, 2010rule 32(1)(e)
  • Industrial Court (Procedure) Rules, 2010rule 32(3)
  • Industrial Court (Procedure) Rules, 2010rule 32(4)
  • Civil Procedure Actsection 80
  • Civil Procedure RulesOrder 45 rule 1
  • Constitution of Kenya, 2010Article 2(1)
  • Constitution of Kenya, 2010Article 2(4)
  • Constitution of Kenya, 2010Article 10
  • Constitution of Kenya, 2010Article 19
  • Constitution of Kenya, 2010Article 20
  • Constitution of Kenya, 2010Article 21
  • Constitution of Kenya, 2010Article 23
  • Constitution of Kenya, 2010Article 24
  • Constitution of Kenya, 2010Article 27
  • Constitution of Kenya, 2010Article 28
  • Constitution of Kenya, 2010Article 35
  • Constitution of Kenya, 2010Article 40
  • Constitution of Kenya, 2010Article 41
  • Constitution of Kenya, 2010Article 47
  • Constitution of Kenya, 2010Article 48
  • Constitution of Kenya, 2010Article 50
  • Constitution of Kenya, 2010Article 159
  • Constitution of Kenya, 2010section 7(1), Sixth Schedule, Part 2

Cases cited (9)

  • Posh Aborwa v Independent Election & Boundaries Commission & 2 Others
    (2014) eKLR
  • Joseph Nyamanba & 4 Others v Kenya Railways Corporation
    (2015) eKLR
  • Samuel Kamau Macharia & Another v Kenya Commercial Bank Limited & 2 Others
    [2012] eKLR
  • Mary Wambui Munene v Peter Gichuki King’ara & 2 others
    (2014) eKLR
  • A. v The Governor of Arbour Hill Prison
    (2006) IESC 45, (2006 4 IR 88
  • Pancras T Swai v Kenya Breweries Ltd
    (2014) eKLR
  • Mrao Ltd v First American Bank of Kenya Ltd & 2 Others
    [2003] eKLR
  • Suleiman Said Shabhal v Independent Electoral and Boundaries Commission & 3 Others
    (2014) EKLR
  • Sias Moise v Transitional Local Council of Greater Germison
    Case CCT 54 of 200
On appeal from
Industrial Court of Kenya at Nairobi
Industrial Cause No. 358 of 2010
Jurisdiction invoked
First appeal to the Court of Appeal from the Industrial Court (Industrial Court Act); constitutional questions on the effective date of invalidity of s.45(3) Employment Act, 2007.

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, "Momanyi v Sdv Transami Kenya Ltd (Civil Appeal 95 of 2013) [2017] KECA 141 (KLR)", Case Analysis (2017). Civil Appeal No. 95 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/141/eng@2017-11-17

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