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Court of AppealDismissedSup. 1 of 2015 (UR 89/17)· [2018] KECA 754 (KLR)

Kenya Dock Workers Retirees Association v Kenya Ports Authority & 2 others [2018] KECA 754 (KLR)

Court of Appeal of Kenya
23 February 2018
2,606 words in judgment
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The bottom line

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The Court of Appeal refused to send the dock workers' pension dispute to the Supreme Court, ruling the issues lacked public importance.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi on an application by the Kenya Dock Workers Retirees Association for certification under Article 163(4)(b) of the Constitution to appeal to the Supreme Court against the Court of Appeal's judgment of 31st July 2014 in Civil Appeal No. 236 of 2012 (Waki, Kiage & Murgor, JJ.A). That judgment had held that the High Court (Korir, J.) erred in failing to quash an Industrial Court award on the KPA pension scheme, the Industrial Court having acted in excess of its jurisdiction reserved to the Retirement Benefits Authority regime; the orders of the Industrial Court were found illegal, irrational and unreasonable and incapable of implementation. The applicant identified two alleged matters of general public importance: the effect of a four-year delay in delivery of the Industrial Court judgment and whether such delay should lead to setting it aside; and the alleged unresolved question of the Industrial Court's jurisdiction. The court reiterated that a matter of general public importance must transcend the parties' interests and impact on society, and that any issue relied upon must have been canvassed and decided in the courts below. Since the delay issue was never canvassed or decided, and the jurisdictional issue had already been conclusively determined, the court found no general public importance and dismissed the application with costs to the respondents. The ruling was delivered by Karanja and Sichale, JJ.A, Kariuki, JA having stepped down before delivery. The application for certification was rejected; the underlying judgment of the Court of Appeal was not disturbed.

Key legal issues

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01

Threshold for certification under Article 163(4)(b)

Holding

The intended appeal must disclose a matter of general public importance transcending the parties' interests; the court was not so satisfied.

Reasoning

The court reviewed the emerging jurisprudence, including the Supreme Court's guidance in Hermanus Phillipus Steyn, that no exhaustive definition exists but the matter must concern the well-being of society and affect persons beyond the parties. The issues the applicant identified - delay in delivery of judgment and its effect on older members of society - were never canvassed before or decided by the courts below, and the jurisdictional issue had been conclusively determined against the Industrial Court on the pleadings.

p. 3
02

Whether the delay and Industrial Court jurisdiction issues raise matters of general public importance

Holding

No. The delay issue was never canvassed nor decided below, and the jurisdiction issue was already decided and is res judicata between the parties.

Reasoning

The court found that no canvassing or decision took place on the effect of setting aside a delayed judgment, so it cannot found a certification application. The contention that the Industrial Court's jurisdiction was unresolved was described as contrived and farfetched: this Court had already decided, in the context of the pleadings, that the Industrial Court had no jurisdiction to usurp the powers of the Minister and that its decision was a nullity. That decided issue cannot be recast as one of general public importance.

p. 4

Legal principles established

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  • A matter of general public importance under Article 163(4)(b) must transcend the interests of the parties and impact on society or bear on public interest.
  • For an issue to qualify as a matter of general public importance on certification, it must have been canvassed and resulted in a decision in the court whose decision is sought to be impugned.

Court orders

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  1. 1.The Notice of Motion dated 20th January 2015 seeking certification under Article 163(4)(b) is dismissed
  2. 2.Costs of the application awarded to the respondents

Authorities

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Legislation

  • Constitution of Kenya 2010Article 163(4)(b)
  • Constitution of Kenya 2010Article 57
  • Retirement Benefits Act
  • Income Tax Act
  • Kenya Ports Authority (Pensions) Regulations 1983

Cases cited (7)

  • Hermanus Philipus Steyn vs. Giovani Checch-Ruscone
    [2013] eKLR
  • Wilfrida Itolondo & 4 others vs. President & 7 others
    [2015] eKLR
  • Mwangi Stephen Muriithi vs. Daniel Toroitich Arap Moi & Another
    [2014] eKLR
  • Murai v. Wainaina (No. 4)
    (1982) KLR
  • Esso Standard v Income Tax
    [1971] EA 127
  • George Chege Kamau vs. Esther Wanjira Kamau
    Civil Application No. Sup 16 of 2013
  • Belinda Murai V. Amos Wainaina
    [1982] KLR 38
On appeal from
Court of Appeal of Kenya
Civil Appeal No. 236 of 2012 (Nairobi)
Jurisdiction invoked
Article 163(4)(b) of the Constitution of Kenya 2010 - certification that a matter of general public importance exists for an intended appeal to the Supreme Court

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kenya Dock Workers Retirees Association v Kenya Ports Authority & 2 others [2018] KECA 754 (KLR)", Case Analysis (2018). Sup. 1 of 2015 (UR 89/17). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/754/eng@2018-02-23

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