Kenya Plantation and Agricultural Workers Union v Kenya Export Floriculture, Horticulture and allied Workers’ Union (Kefhau) represented by Its Promoters David Benedict Omulama & 9 others [2018] KECA 760 (KLR)
The bottom line
#Kenya's Court of Appeal cleared the way for a trade union dispute over union registration to be heard by the Supreme Court, ruling it affects workers nationwide.
What this practically means
#Executive summary
#Key legal issues
#Whether the intended appeal raises a matter of general public importance under Article 163(4)(b) of the Constitution
The Court certified the intended appeal, holding that the applicant had identified specific elements of general public importance: the issues transcend the case, touch on the fundamental rights to freedom of association and to form and join trade unions, and their resolution would affect the labour movement, the workforce and the economy.
Applying the Steyn test, the Court found the principal question - whether the Industrial Court could apply the Constitution 2010 to a case predating its promulgation - transcended the instant case. It noted Articles 36(1) and 41 on freedom of association and trade union rights, and accepted counsel's submission that the parameters of trade union registration would affect the labour movement, workforce and economy. It also found the issues had been determined in the courts below.
Whether the applicant discharged its obligation to identify the specific elements of general public importance
Yes; the applicant set out pertinent questions for the Supreme Court and outlined how the decision would affect the labour movement, the workforce and the economy if the parameters of trade union registration were not set right.
The Court perused the grounds and pertinent questions, held the main issue to be one of substantial law transcending the case, and confirmed the matter had undergone examination in the lower courts as required by the Ngoge decision. It further found the applicant intended to challenge the interpretation or application of specific constitutional provisions, placing the matter within Article 163(4).
Legal principles established
#- Not all intended appeals lie from the Court of Appeal to the Supreme Court; only appeals arising from cases involving the interpretation or application of the Constitution, or appeals certified under Article 163(4)(b) as involving a matter of general public importance, may be entertained by the Supreme Court.
- The test for certification is that the intending appellant must demonstrate that the matter's impacts and consequences are substantial, broad-based, transcending the litigation-interests of the parties, and bearing upon the public interest, and that the burden of demonstrating specific elements of real public interest and concern falls on the intending appellant.
- Questions of law relied on for certification must have arisen in the courts below and been the subject of judicial determination; mere apprehension of miscarriage of justice is not a basis for certification; determinations of fact between parties are not by themselves a basis for certification.
- An application for certification occasioned by contradictory precedents may be resolved by the Supreme Court or referred to the Court of Appeal.
Court orders
#- 1.The Court certified the intended appeal as one involving a matter of general public importance, meeting the threshold in Article 163(4)(b) of the Constitution for an appeal to the Supreme Court
- On appeal from
- Court of Appeal at Nairobi (this certification application seeks leave to appeal to the Supreme Court from the Court of Appeal's own judgment)
- Civil Appeal No. 141 of 2014
- Jurisdiction invoked
- Article 163(4)(b) of the Constitution (certification that the intended appeal involves a matter of general public importance), with Rules 24 and 26 of the Supreme Court Rules and Rule 40 of the Court of Appeal Rules
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.
- Ecobank Kenya Limited v Macharia Mwangi & Njeru Advocates (Civil Application SUP NO. E003 of 2024) [2024] KECA 1412 (KLR)[2024] KECA 1412 (KLR)11 Oct 2024
Cite this brief
#Cite this brief
Caselaw, "Kenya Plantation and Agricultural Workers Union v Kenya Export Floriculture, Horticulture and allied Workers’ Union (Kefhau) represented by Its Promoters David Benedict Omulama & 9 others [2018] KECA 760 (KLR)", Case Analysis (2018). Civil Application No. SUP. 5 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/760/eng@2018-02-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.