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Court of AppealDismissedCivil Appeal (Application) E198 of 2023· [2024] KECA 1945 (KLR)

Kenya Aviation Workers Union v Kenya Airways Limited

Court of Appeal
20 December 2024
WKW KaranjaJMJamila MohammedAMA.O. Muchelule
979 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to revive the union's late appeal, confirming that only the intended appellant's own reasons for delay count.

What this practically means

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Executive summary

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The Kenya Aviation Workers Union sought a reference to the full Court under Rule 57(1)(b) of the Court of Appeal Rules, 2022, challenging a ruling by M'Inoti, JA dated 11th October 2024 which had declined to extend time to file and serve a record of appeal. The intended appeal targeted the judgment of Rika, J of the Employment and Labour Relations Court at Nairobi in ELRC No. 1448 of 2015, which dismissed the union's claim for damages for wrongful dismissal of its member, Winnie Kasyoka Mumo. The union filed a notice of appeal on 14th June 2022 but the extension application was lodged many months later, supported by an affidavit of the dismissed member citing her inability to raise legal fees due to her son's hospitalisation, resolved only after she sold land. The single Judge found the delay inordinate and unexplained by the union, the intended appellant, noting the member could have appealed personally under Rule 77(1) but had not. Before the full Court, counsel for the union reiterated the same reasons; counsel for Kenya Airways maintained the member's affidavit could not support the union's application. The full Court, comprising Karanja, Mohammed and Muchelule, JJA, applied its settled test that an applicant on a reference must show the single Judge disregarded a relevant matter, regarded an irrelevant matter, or misapprehended the evidence or law. Finding no such misdirection, the Court dismissed the reference with costs, affirming the single Judge's decision.

Key legal issues

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01

Test for varying a single Judge's decision on a reference to the full Court

Holding

The reference fails where the applicant shows no misdirection by the single Judge; the full Court does not rehear the application afresh.

Reasoning

Rule 57(1)(b) permits a dissatisfied party to seek variation, discharge or reversal of a single Judge's decision. The Court restated its settled position that the applicant must show the discretion was not judiciously exercised - disregard of a relevant matter, regard of an irrelevant matter, or misapprehension of evidence or law. Finding no such misdirection, the Court declined to interfere.

p. 2
02

Whose delay and explanation matter where a union, not the affected member, is the intended appellant

Holding

The union was the intended appellant and offered no explanation for the delay; the member's personal circumstances could not explain the union's delay.

Reasoning

The single Judge found the union, a registered trade union with capacity to sue and be sued, was the intended appellant yet gave no explanation for the 11-month delay. The deponent's personal circumstances (hospitalised autistic son, inability to raise fees) were irrelevant because she was not the applicant and had not filed her own notice of appeal or application, though Rule 77(1) entitled her to appeal personally.

p. 2

Legal principles established

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  • On a reference under Rule 57(1)(b), the applicant must show the single Judge disregarded a relevant matter, regarded an irrelevant matter, or acted on a misapprehension of evidence or law.

Court orders

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  1. 1.The reference is dismissed with costs

Authorities

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Legislation

  • Court of Appeal RulesRule 57(1)(b)
  • Court of Appeal RulesRule 4
  • Court of Appeal RulesRule 77(1)
  • Labour Relations Actsection 21

Cases cited (2)

  • Makove -vs- Statutory Manager United Insurance Company Limited & 196 Others
    Civil Appeal (Application) No. 279 of 2009

    Test for interfering with a single Judge's decision on reference to full Court

  • Kimathi & Another -vs- Muriuki & 12 Others
    Civil Appeal (Application) No. 61 of 2020

    Test for interfering with a single Judge's decision on reference to full Court

On appeal from
Decision of a single Judge of the Court of Appeal (M'Inoti, JA)
Application under Rule 4 in Civil Appeal E198 of 2023
Jurisdiction invoked
Rule 57(1)(b) of the Court of Appeal Rules, 2022 (reference from a single Judge's decision)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (25)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kenya Aviation Workers Union v Kenya Airways Limited", Case Analysis (2024). Civil Appeal (Application) E198 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1945/eng@2024-12-20

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