Momanyi v Sdv Transami Kenya Ltd (Civil Appeal 95 of 2013) [2017] KECA 141 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the High Court's declaration of unconstitutionality constituted 'sufficient reason' for review under rule 32(1)(e)
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.
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.
Whether the High Court declaration applied retrospectively to the appellant's already-determined preliminary objection
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.
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.
Whether the Industrial Court was bound to implement the High Court's declaration suo motu
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.
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.
Legal principles established
#- 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
#- 1.Appeal dismissed with no order as to costs.
- 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
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- John Muthomi Mathiu v Mastermind Tobacco (K) Limited [2018] KEELRC 540 (KLR)[2018] KEELRC 540 (KLR)8 Nov 2018distinguished
Cite this brief
#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.