Nelson Agoya & 6 others v Kenya Union of Empoyees of Voluntary &Charitable; Organisations (KUEVACO) & Daystar University [2020] KECA 846 (KLR)

The judgment appealed from was that of the former Industrial Court, which at the material time was governed by the Labour Institutions Act No. 12 of 2007, in force from 2nd June 2008. That statute provided an appeal to the Court of Appeal on matters of law. Because a direct right of appeal existed by statute, the argument that leave was necessary because the Industrial Court was then a tribunal had no foundation.

Although the claim in the Industrial Court was filed by the Union, the appellants were the former employees whose dues and compensation were the subject of the award. The Court had in its earlier ruling of 8th July 2016 determined that persons directly affected by orders in an appeal have the requisite standing, and the Court saw no reason to depart from that position at the hearing of the appeal.

The trial court had directed preparation of the Labour Commissioner's report, which addressed all the issues raised, was accepted and endorsed by the parties, and formed the basis of the award. The compensation award was discretionary, and nothing showed the Judge considered irrelevant matters, ignored relevant ones, or acted capriciously. The appellants were also given leeway to revert to the labour office if dissatisfied with the computation.

Civil Appeal No. 171 of 2013 challenged the judgment and award of 3rd March 2009, whereas the 1st respondent's memorandum of appeal challenged the ruling of 26th November 2010 declining review. Though the parties were essentially the same, an appeal against a different decision could not be treated as a cross-appeal. Since the earlier consolidation order was set aside upon discovery that no appeal had actually been filed, the 1st respondent's memorandum fell away.