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Court of AppealDismissedCivil Application E048 of 2022· [2022] KECA 1380 (KLR)

Osanjo v Managing Director, Kenya Ports Authority & 3 others

Court of Appeal
16 December 2022
1,047 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 refused to stop a former Kenya Ports Authority employee's eviction, ruling that employer-provided housing ends when employment ends.

What this practically means

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Executive summary

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The applicant, a former KPA receptionist dismissed on June 4, 2021 for submitting a fake academic certificate, had been housed by KPA in servant quarters. Her judicial review application seeking certiorari to quash her interdiction and dismissal was dismissed by the ELRC (Ongaya, J.) on July 1, 2022, which found the dismissal procedure fair and no violation of her rights. She filed a notice of appeal and then moved the Court of Appeal at Mombasa for prohibitory orders restraining her eviction from the house pending the intended appeal. Although the application was anchored on the Civil Procedure Act and Civil Procedure Rules and argued under the Giella v Cassman Brown injunction principles, the court treated it as one under rule 5(2)(b) of the Court of Appeal Rules. Applying the arguability and nugatory-aspect test from Stanley Kangethe Kinyanjui v Tony Ketter, the court found the intended appeal arguable, since the applicant alleged she was denied a hearing and that the Judge accepted the respondent's version without basis. However, on the nugatory limb, the court held that the reliefs available, reinstatement not being in issue, were mainly compensatory, and that following Makokha v Sagini the benefit of housing runs with the employment and ended upon termination. The application was therefore dismissed with no orders as to costs.

Key legal issues

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01

Arguability of the intended appeal

Holding

The intended appeal is arguable because the applicant asserts that she was not accorded an opportunity to be heard and that the Judge accepted the respondent's version without a basis

Reasoning

The court recalled that an arguable appeal need not necessarily succeed. On the memorandum of appeal, the applicant alleged denial of a hearing and that the Judge wrongly accepted the respondent's version as gospel truth. Those grounds sufficed to show the appeal was not frivolous.

p. 2
02

Whether the appeal would be rendered nugatory without the prohibitory orders

Holding

The appeal would not be rendered nugatory because the reliefs available, reinstatement not being in issue, are mainly compensatory and the benefit of housing runs with the terminated employment

Reasoning

The suit below was a judicial review application; the reliefs available under the Employment Act where reinstatement is not in issue are mainly compensatory, and the applicant herself sought damages. Following Makokha v Sagini, the housing benefit ended with the employment, so declining the orders would not render a successful appeal nugatory.

p. 3

Legal principles established

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  • An applicant under rule 5(2)(b) must demonstrate that the intended appeal is arguable and that it will be rendered nugatory if interim orders are declined
  • An application misanchored on the Civil Procedure Act may be treated by the Court of Appeal as though made under rule 5(2)(b) of the Court of Appeal Rules
  • The benefit of employer-provided housing runs with the employment and ends upon termination of the employment contract

Court orders

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  1. 1.The application is dismissed
  2. 2.No orders as to costs
On appeal from
Employment & Labour Relations Court
Judicial Review Cause No. E004 of 2021
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules (application was brought under the Civil Procedure Act and Civil Procedure Rules but treated by the court as one under rule 5(2)(b))

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, "Osanjo v Managing Director, Kenya Ports Authority & 3 others", Case Analysis (2022). Civil Application E048 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1380/eng@2022-12-16

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