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Court of AppealPartially AllowedAppeal from ELRC Petition No. 72 of 2015· [2021] KECA 85 (KLR)

Teachers Service Commission v Kenya National Union of Teachers (knut) & 2 others

Court of Appeal of Kenya
22 October 2021
HOHannah OkwenguASAsike-MakhandiaFSF. Sichaale
4,211 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal voided the ruling protecting the 2015 teachers' strike because one judge cannot overturn another judge's equal decision.

What this practically means

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Executive summary

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This appeal arose from the 2015 teachers' strike called by KNUT and KUPPET over non-implementation of a 50%-60% salary increment awarded in ELRC Petition No. 3 of 2015. The Teachers Service Commission filed Petition No. 72 of 2015 seeking declarations that the strike was illegal and unprotected, an injunction, and an order that teachers resume duty. In an interim ruling of 4th September 2015, Mbaru, J. held the industrial action unprotected; however, in the final judgment of 25th September 2015, Abuodha, J. found the strike protected, ordered its suspension for 90 days, directed conciliation, and barred the Commission from victimising strikers, including payment of full salaries. The Commission appealed. Before the Court of Appeal, the 1st respondent also moved to strike out the appeal on estoppel grounds arising from a State House stakeholders meeting brokered by the President. The Court dismissed that motion: it was filed more than three years after service of the record, well outside the mandatory 30-day window in Rule 84 of the Court of Appeal Rules, with no extension of time sought. On the appeal, the Court identified one decisive issue: whether Abuodha, J. could reverse Mbaru, J.'s ruling. Applying Bellevue Development Company Ltd v. Francis Gikonyo, the Court held that judges of concurrent jurisdiction possess no supervisory or appellate power over one another; Mbaru, J.'s holding had never been reviewed or set aside on appeal, so Abuodha, J. assumed a jurisdiction he did not have by declaring the strike protected. The Court allowed the appeal, set aside the judgment and decree of the ELRC dated 25th September 2015, and made no order as to costs.

Key legal issues

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01

Whether the motion to strike out the appeal filed on 14th November 2018 was properly before the court

Holding

The motion was filed far outside the 30-day period prescribed by Rule 84 and, absent leave to extend time, was defective and had to be dismissed

Reasoning

Rule 84's proviso requires an application to strike out a notice or record of appeal to be brought within 30 days of service. The motion was lodged more than three years after service. The proviso is mandatory; no extension of time was sought or granted, and the overriding objective cannot be invoked to defeat an express rule where the grounds advanced are not among those the rule contemplates.

p. 6
02

Whether Abuodha, J. could declare the strike protected after Mbaru, J. had held it unprotected in the same petition

Holding

Abuodha, J., being a judge of concurrent jurisdiction with Mbaru, J., had no jurisdiction to review, reverse or set aside her ruling, so that holding stood and the appeal had to be allowed

Reasoning

Both judges sit in the ELRC and enjoy concurrent jurisdiction; neither can superintend, sit on appeal over, review or set aside the other's decision. Mbaru, J.'s ruling that the strike was unprotected was never reviewed nor set aside on appeal, so Abuodha, J.'s contrary declaration assumed a jurisdiction he did not have. The respondents' argument that he was not bound by her decision was rejected as a long shot.

p. 7

Legal principles established

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  • Judges of concurrent jurisdiction cannot sit on appeal over, review, set aside or superintend each other's decisions
  • An application under Rule 84 of the Court of Appeal Rules to strike out an appeal must be brought within 30 days of service of the notice of appeal or record of appeal, and the overriding objective cannot cure non-compliance with that mandatory time frame

Court orders

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  1. 1.The motion to strike out the appeal is dismissed
  2. 2.The appeal is allowed and the judgment and decree of the ELRC dated 25th September 2015 are set aside
  3. 3.No order as to costs
On appeal from
Employment and Labour Relations Court
Petition No. 72 of 2015
Jurisdiction invoked
First appeal under the Appellate Jurisdiction Act (Sections 3, 3A and 3B) and the Court of Appeal Rules

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Teachers Service Commission v Kenya National Union of Teachers (knut) & 2 others", Case Analysis (2021). Appeal from ELRC Petition No. 72 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/85/eng@2021-10-22

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