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Court of AppealAllowedNot stated (application dated July 12, 2022; request by letter dated February 9, 2023)· [2023] KECA 332 (KLR)

PS, Ministry of Education Department of Vocational and Technical Training & another v Oguwi & 2 others (Civil Application E248 of 2022) [2023] KECA 332 (KLR)

Court of Appeal of Kenya
17 March 2023
ASAsike-Makhandia
851 words in judgment
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The bottom line

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The Court of Appeal certified an employment dispute involving over Kshs 58 million and 3,000 TVET trainers as urgent, clarifying the test for jumping the court's queue.

What this practically means

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Executive summary

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This is a short ruling by the duty Judge of the Court of Appeal at Nairobi, Asike-Makhandia JA, on an application dated July 12, 2022 seeking certification as urgent. The Judge had earlier declined to certify the application urgent when it was placed before him ex parte; by a letter dated February 9, 2023 the applicants invoked rule 49(5) of the Court's rules to have the question of urgency reconsidered inter partes. The background was an Employment and Labour Relations Court judgment of December 10, 2021 directing the 2nd and 3rd respondents to refund monies deducted from the 1st respondent's salary and that of the persons he represented, computed by the 3rd respondent at Kshs 58,319,618.30. The applicants argued that the 2nd respondent, which actually benefited from the deductions, should bear the refund, and that execution against them risked contempt proceedings. The 3rd respondent, the only respondent to oppose urgency, urged the urgency of the matter given the sums involved, the limbo facing some 3,000 trainers at TVET institutions, and public interest. Applying its settled test in Jared Okello v Charles Otieno Opiyo and the nugatory-principle line of cases, the Court held that certification of urgency is a judicious discretion and that an applicant must show the application and intended appeal would be rendered nugatory if not heard promptly. Satisfied by the material placed before it, the Court certified the application urgent and granted it preferential treatment. No order as to costs was made.

Key legal issues

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Test for certifying an application urgent in the Court of Appeal

Holding

Urgency certification is a judicious discretion; the applicant must show the application and intended appeal would be rendered nugatory absent prompt hearing, deserving priority over matters first in time.

Reasoning

The Court drew on its own prior decisions, explaining that certification allows a matter to jump the queue over earlier-filed matters, a practice deliberately dictated by fairness to all litigants and case-management considerations. The nugatory-principle cases were applied as the governing test, and the Court found the material placed before it - the large sums involved, the plight of some 3,000 trainers, and public interest - sufficient to satisfy the test.

p. 2

Legal principles established

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  • Certification of urgency is a discretionary exercise that must be exercised judiciously, and a matter must be shown to deserve priority hearing before it can jump the queue.
  • An applicant seeking urgent certification must show that if the application is not heard promptly, the application and the intended appeal may be rendered nugatory.

Court orders

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  1. 1.The application dated July 12, 2022 was certified urgent and granted preferential treatment
  2. 2.It is so ordered

Authorities

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Legislation

  • Court of Appeal Rulesrule 49(5)

Cases cited (4)

  • Jared Okello v Charles Otieno Opiyo & 3 Others
    CA No 151 of 2017
  • Railways & Allied Workers Union v Rift Valley Railways Workers Union
    CA No Nai 29 of 2015
  • New Kenya Co-operative Creameries Ltd v Olga Ouma Adede
    CA No Nai 316 of 2014
  • Kenya Oil Co Ltd v Jayantilal Dharamshi Gosrani
    CA No 117 of 2010
On appeal from
Employment and Labour Relations Court
Not stated
Jurisdiction invoked
Rule 49(5) of the Court of Appeal Rules (duty judge certification of urgency)

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, "PS, Ministry of Education Department of Vocational and Technical Training & another v Oguwi & 2 others (Civil Application E248 of 2022) [2023] KECA 332 (KLR)", Case Analysis (2023). Not stated (application dated July 12, 2022; request by letter dated February 9, 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/332/eng@2023-03-17

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