GEORGE WAINAINA KAMAU V MUTHAIGA COUNTRY CLUB [2013] KEELRC 234 (KLR)
The bottom line
#Kenya's Industrial Court set aside a stay of execution granted without hearing the other side, confirming the constitutional right to be heard applies to all court orders.
What this practically means
#Executive summary
#Key legal issues
#Right of appeal from the former Industrial Court to the Court of Appeal
The Respondent had a right to appeal to the Court of Appeal by virtue of Section 27 of the Labour Institutions Act.
The Court acknowledged divergent High Court views on whether the former Industrial Court was subordinate to or at the level of the High Court. Rather than resolve the doctrinal dispute, it held that the express statutory right of appeal in Section 27 of the (repealed) Labour Institutions Act could not be ignored, so the Respondent was entitled to prefer an appeal to the Court of Appeal.
Whether a dismissed review application bars a subsequent appeal
The review did not extinguish the Respondent's right of appeal because the appeal grounds were wider than the review grounds.
The ruling dismissing the review had mainly considered error on the face of the record, whereas the Memorandum of Appeal covered wider grounds. Following the Court of Appeal's decision in Highway Secondary School v Mmsoi Moi, the review did not operate as an estoppel against the appeal. On delay, the Court could not apportion blame to either party given the Certificate of Delay.
Ex parte stay order and the right to be heard under the Constitution of 2010
The stay order of 5th July 2011 was issued in fundamental breach of the constitutional right to be heard and was set aside.
The Court record showed neither party was heard, only correspondence with the Respondent's Advocate. The order was granted after the 2010 Constitution, whose Article 50 anchors the right to be heard. Although the Respondent was also not heard, it was not aggrieved since the order favoured it. The Court therefore found a fundamental breach as regards the Claimant and set the order aside.
Legal principles established
#- Section 27 of the (repealed) Labour Institutions Act preserved a statutory right of appeal from the former Industrial Court to the Court of Appeal.
- A lost application for review does not necessarily extinguish the right of appeal where the grounds of appeal are wider than the review grounds.
- Post-2010 Constitution, orders affecting a party cannot be granted ex parte without hearing them; such an order is a fundamental breach and will be set aside.
Court orders
#- 1.The stay of execution order issued on 5th July 2011 was set aside forthwith
- 2.No order for costs
- Jurisdiction invoked
- Original and incidental jurisdiction of the (former) Industrial Court over applications in pending industrial disputes
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "GEORGE WAINAINA KAMAU V MUTHAIGA COUNTRY CLUB [2013] KEELRC 234 (KLR)", Case Analysis (2013). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/234/eng@2013-05-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.