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Court of AppealPartially AllowedCivil Application E545 of 2023· [2024] KECA 1905 (KLR)

University Academic Staff Union (UASU) v Ministry of Education & 5 others

Court of Appeal
28 March 2024
KMK. M'INOTIFTF. TUIYOTTFOFA OCHIENG
730 words in judgment
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The bottom line

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Kenya's Court of Appeal declared the government's appeal against a university lecturers' pay judgment withdrawn for delay, so the original ruling stands.

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 (M'Inoti, Tuiyott and Ochieng, JJA) on a notice of motion dated 16 October 2023 by the University Academic Staff Union (UASU), the applicant, invoking Rule 85(1) of the Court of Appeal Rules, 2022. UASU sought an order deeming withdrawn the notice of appeal filed on 15 January 2022 by the 1st to 4th respondents (Ministry of Education, Ministry of Labour, Attorney General and the Salaries and Remuneration Commission) against the judgment of the Employment and Labour Relations Court (M. Onyango, J) of 15 January 2021 in ELRC CBA No. 1, 2 and 3 of 2020, and further sought the setting aside of stay orders issued in Civil Application No. E418 of 2021. The 6th respondent, Kenya Union of Domestic, Hotels, Education, Institutions and Hospital Workers, supported the motion. The Attorney General conceded the delay in instituting the appeal, attributing it to re-allocation of the file and an omission from hand-over notes, and undertook to file the record of appeal within 14 days. The court held the motion unanswerable: the time prescribed by Rule 84 had been breached, and the explanations could only ground an extension-of-time application, which was not before the full Court. It deemed the notice of appeal withdrawn, held that the stay in E418 of 2021 lapsed automatically since it was to last until the appeal was heard and determined, and awarded costs of the motion against the 1st to 4th respondents. The effect is that the ELRC judgment stands unchallenged on appeal by those respondents.

Key legal issues

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01

Deemed withdrawal of a notice of appeal under Rule 85(1)

Holding

The notice of appeal filed by the 1st to 4th respondents was deemed withdrawn because no appeal was instituted within the appointed time under Rule 84, a breach conceded by the Attorney General.

Reasoning

Rule 85(1) deems a notice of appeal withdrawn where the appeal is not instituted within the appointed time. The Attorney General conceded the delay, attributing it to re-allocation of the file and omission from hand-over notes. The court held those explanations could only support an extension-of-time application, which was not before the full bench.

p. 2
02

Fate of interim stay orders after deemed withdrawal

Holding

The stay orders in E418 of 2021 lapsed automatically upon the deemed withdrawal of the appeal; no order of discharge was necessary.

Reasoning

The stay had been granted to preserve the position until the appeal was heard and determined. With the notice of appeal deemed withdrawn, there is no appeal to be heard, so the condition sustaining the stay falls away and the stay lapses by its own terms without further order.

p. 2

Legal principles established

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  • A party who lodges a notice of appeal but fails to institute the appeal within the appointed time is deemed to have withdrawn the notice of appeal, and the Court may so order on its own motion or on application by any party.
  • A stay expressed to last until the appeal is heard and determined lapses automatically once the appeal cannot proceed; no separate order of discharge is needed.

Court orders

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  1. 1.The notice of appeal filed by the 1st to 4th respondents on January 15, 2021 against the decision of the ELRC is deemed withdrawn
  2. 2.Costs of the motion to be borne by the 1st to 4th respondents

Authorities

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Legislation

  • Court of Appeal RulesRule 85(1)
  • Court of Appeal RulesRule 84

Cases cited (1)

  • Ministry of Education and 4 Others vs Kenya Union of Domestic, Hotels, Education, Institutions and Hospital Workers
    Civil Application No. E418 of 2021

    Source of the stay orders sought to be set aside

On appeal from
Employment and Labour Relations Court
ELRC CBA No. 1, 2 and 3 of 2020
Jurisdiction invoked
Rule 85(1) of the Court of Appeal Rules, 2022

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, "University Academic Staff Union (UASU) v Ministry of Education & 5 others", Case Analysis (2024). Civil Application E545 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1905/eng@2024-03-28

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