Gatuma v Kenya Breweries Limited & 3 others (Civil Application 180 of 2018) [2023] KECA 714 (KLR)
The bottom line
#Kenya's Court of Appeal allowed an employee's bid to take a workplace pay-cut dispute to the Supreme Court, calling it a matter of national public importance.
What this practically means
#Executive summary
#Key legal issues
#Whether the intended appeal raises a matter of general public importance under Article 163(4)(b)
Yes. The application met the Steyn test: the question whether it is fair labour practice to unilaterally vary terms of employment, especially remuneration, while retaining the basic tenets of employment transcends the particular case and bears on public interest.
The Court applied the Supreme Court's test in Hermanus Phillipus Steyn v Giovanni Gnecci-Ruscone, that a matter of general public importance is one whose impact and consequences are substantial, broad-based and transcend the parties' litigation interests. It found the applicant had identified specific elements of general public importance, chiefly the unilateral reduction of salary while retaining the basic tenets of employment, and that divergent approaches by the Industrial Court and the Court of Appeal on employees' rights against company legal personalities left a state of uncertainty best settled by the Supreme Court.
Burden on the intending appellant to rationalize the issue as one of general public importance
The intending appellant must demonstrate specific elements of real public interest and, per Peter Oduor Ngoge v Francis Ole Kaparo, rationalize the transmutation of the issue into a meritorious theme involving constitutional interpretation warranting the Supreme Court's appellate jurisdiction.
Relying on Ngoge, the Court noted that a petitioner must rationalize the transmutation of the issue from an ordinary subject of leave to appeal to a meritorious theme. Here, the applicant had concisely set out the specific elements of general public importance he relied on and framed issues for the Supreme Court's consideration, satisfying the threshold. The respondents' objection that the dispute concerned private entities and free trade did not prevail.
Legal principles established
#- An issue of general public importance for certification under Article 163(4)(b) is one whose impact and consequences are substantial, broad-based and transcend the litigation interests of the parties, and the intending appellant bears the burden of demonstrating specific elements of real public interest.
- The unilateral reduction of an employee's salary while retaining the basic tenets of the employment relationship is capable of constituting a matter of general public importance for purposes of certification to the Supreme Court.
Court orders
#- 1.The Notice of Motion dated June 20, 2018 seeking certification and leave to appeal to the Supreme Court is allowed
- On appeal from
- Employment and Labour Relations Court (Industrial Court)
- Industrial Cause No 1011 of 2020; underlying appeal Nairobi Civil Appeal No 172 of 2013
- Jurisdiction invoked
- Article 163(4)(b) of the Constitution; Sections 3A & 3B of the Appellate Jurisdiction Act; Section 15(1) of the Supreme Court Act; rule 24 of the Supreme Court Rules; rules 42 and 43 of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gatuma v Kenya Breweries Limited & 3 others (Civil Application 180 of 2018) [2023] KECA 714 (KLR)", Case Analysis (2023). Rule 42 Certification Application dated June 20, 2018 (in re Nairobi Civil Appeal No 172 of 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/714/eng@2023-06-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.