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Court of AppealAllowedRule 42 Certification Application dated June 20, 2018 (in re Nairobi Civil Appeal No 172 of 2013)· [2023] KECA 714 (KLR)

Gatuma v Kenya Breweries Limited & 3 others (Civil Application 180 of 2018) [2023] KECA 714 (KLR)

Court of Appeal
9 June 2023
1,783 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 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

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi (Musinga, P, Omondi and Laibuta, JJ A) on a certification application under Article 163(4)(b) of the Constitution seeking leave to appeal to the Supreme Court against the Court of Appeal's judgment overturning an Employment and Labour Relations Court decision in favour of Symon Wairobi. The applicant had been employed by Kenya Breweries Limited from 1986, declared redundant when the malting division was de-linked, and re-engaged by a newly formed subsidiary, Kenya Maltings Limited, at a drastically reduced salary. The trial court held he remained in continuous employment with all four respondents, that the subsidiaries were a facade, and awarded salary arrears; the Court of Appeal reversed, holding the redundancy was properly executed, the subsidiaries were separate legal entities, and the applicant had acquiesced in the new terms. The certification application turned on whether the intended appeal raises a matter of general public importance. Applying the Supreme Court's test in Hermanus Phillipus Steyn v Giovanni Gnecci-Ruscone, the Court held that the question whether it is fair labour practice unilaterally to reduce an employee's salary while retaining the basic tenets of employment transcends the parties and bears on public interest, particularly given divergent approaches by the Industrial Court and the Court of Appeal on employees' rights vis-à-vis corporate legal personality. The application was allowed, clearing the way for the intended appeal to the Supreme Court.

Key legal issues

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01

Whether the intended appeal raises a matter of general public importance under Article 163(4)(b)

Holding

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.

Reasoning

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.

p. 4
02

Burden on the intending appellant to rationalize the issue as one of general public importance

Holding

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.

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.The Notice of Motion dated June 20, 2018 seeking certification and leave to appeal to the Supreme Court is allowed

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 10
  • Constitution of Kenya, 2010Article 20(3)
  • Constitution of Kenya, 2010Article 25(c)
  • Constitution of Kenya, 2010Article 40
  • Constitution of Kenya, 2010Article 50
  • Constitution of Kenya, 2010Article 159(2)(a) and (d)
  • Constitution of Kenya, 2010Article 163(4)(b)
  • Constitution of Kenya, 2010Article 259(1)
  • Appellate Jurisdiction ActSections 3A and 3B
  • Supreme Court ActSection 15(1)
  • Employment ActEmployment Act 2007 (generally)
  • Court of Appeal RulesRule 1(2)
  • Court of Appeal RulesRules 42 and 43
  • Supreme Court RulesRule 24

Cases cited (3)

  • Murai v Wainaina
    [1982] KLR p 38 at p 49 para 1
  • Hermanus Phillipus Steyn v Giovanni Gnecci-Ruscone
    [2013] eKLR
  • Peter Oduor Ngoge v Francis Ole Kaparo & 5 others
    Supreme Court Petition No 2 of 2012 [2012] eKLR
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

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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, "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.