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Court of AppealDismissedCivil Appeal 194 of 2016· [2022] KECA 1178 (KLR)

Kenya Game Hunting & Safari Workers Union v Micato Safaris Ltd

Court of Appeal
21 October 2022
KMK M'InotiHOH A OmondiKLK I Laibuta
1,914 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal dismissed a workers' union appeal against Micato Safaris, confirming courts should not strike out appeals over minor technical defects.

What this practically means

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Executive summary

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The appellant union and Micato Safaris Ltd, bound by a recognition agreement, deadlocked in conciliation over general wage increases and house allowances for the 2012-2014 CBA cycle. The union moved the ELRC, which by a ruling of June 17, 2016 (Abuodha J. Nelson) directed that the disputed issues be revisited during the next bargaining cycle (2014-2016), relying on the CPMU report of the Ministry of Labour. The union appealed on six grounds, contending the judge ignored negotiation records, the CPMU recommendations, the substantive issues and the evidence. The respondent filed a notice of motion under rules 1(2), 42(1) and 84 of the Court of Appeal Rules, 2010 seeking striking out of the appeal as incurably defective. The Court declined, holding that formal infractions not going to jurisdiction and causing no injurious prejudice should not attract striking out, applying article 159(2)(d) and the Supreme Court's decision in Salat, particularly since the defects had been largely cured by a supplementary record. On the merits, the Court, exercising its first-appeal retrial duty per Selle and Arthi Highway Developers, found the ELRC judge had properly considered the negotiation records, the substantive dispute and the CPMU report. The appeal was dismissed, the respondent's motion dismissed, the ELRC ruling upheld, and each party ordered to bear its own costs of both the application and the appeal.

Key legal issues

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01

Whether the defective record of appeal warranted striking out

Holding

No - the defects were formal, largely cured by a supplementary record, and caused no injurious prejudice; the motion was disallowed.

Reasoning

The Court applies article 159(2)(d) and Salat, holding that lapses in form not going to jurisdiction or causing prejudice should not attract the draconian remedy of striking out, especially where the application is heard with the main appeal by consent and the record has been supplemented.

p. 3
02

Whether the ELRC judge erred in his evaluation of the dispute and directions

Holding

No - the judge considered the negotiation records, the substantive issues and the CPMU report; the appeal was dismissed and the ruling upheld.

Reasoning

The Court, as a first appellate court, re-assessed the evidence and found nothing to suggest the judge ignored previous negotiations or failed to deal with the substantive issues; paragraphs 7 to 12 of the ruling showed he was properly guided by the CPMU report.

p. 4

Legal principles established

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  • A first appeal to the Court of Appeal is by way of retrial; the Court must reconsider and evaluate the evidence and draw its own conclusions.
  • Formal or technical infractions in a record of appeal that do not go to jurisdiction or occasion prejudice should not attract striking out, per article 159(2)(d).
  • Credible technical reports giving professional analysis of a dispute are persuasive authority which the ELRC may rely on.

Court orders

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  1. 1.The respondent's notice of motion dated September 8, 2016 be and is hereby dismissed
  2. 2.The appellant's appeal be and is hereby dismissed
  3. 3.The ruling of the ELRC (Abuodha J. Nelson, J) dated June 17, 2016 be and is hereby upheld
  4. 4.Each party shall bear their own costs of the application and of the appeal

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 159(2)(d)
  • Court of Appeal Rules, 2010Rules 1(2), 42(1) and 84

Cases cited (3)

  • Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 6 others
    [2013] eKLR

    Deviations from form not going to jurisdiction or causing prejudice should not attract striking out of pleadings.

  • Arthi Highway Developers Limited v West End Butchery Limited and 6 others
    [2015] eKLR

    Duty of a first appellate court to re-assess evidence and reach its own conclusions.

  • Selle v Associated Motor Boat Co
    [1968] EA p123

    First appeal is by way of retrial; the court must reconsider the evidence and draw its own conclusions.

On appeal from
Employment and Labour Relations Court at Nairobi
E.L.R.C Cause No. 2437 of 2012
Jurisdiction invoked
First appeal to the Court of Appeal under the Court of Appeal Rules, 2010 (appeal against a ruling of the ELRC)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (10)

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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, "Kenya Game Hunting & Safari Workers Union v Micato Safaris Ltd", Case Analysis (2022). Civil Appeal 194 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1178/eng@2022-10-21

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