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ELRCPartially AllowedNot stated in the judgment· [2013] KEELRC 234 (KLR)

GEORGE WAINAINA KAMAU V MUTHAIGA COUNTRY CLUB [2013] KEELRC 234 (KLR)

Industrial Court (formerly the former Industrial Court, now Employment and Labour Relations Court)
27 May 2013
1,494 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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This Ruling of the Industrial Court at Nairobi, delivered by Linnet Ndolo, Judge, on 27th May 2013, determined a Claimant's application for review and setting aside of a stay of execution order granted ex parte on 5th July 2011. The underlying Award of Kshs. 1,423,296 for wrongful dismissal had been made on 30th July 2009. The Respondent's attempt to review the Award failed in February 2010, after which it sought and obtained, without a hearing, a stay of execution with the decretal amount to be deposited in an escrow account. The Claimant applied to set aside that order. Three issues arose: whether appeals from the former Industrial Court lay to the Court of Appeal; whether a dismissed review application barred an appeal; and whether the ex parte stay order violated the right to be heard. The Court held that Section 27 of the (repealed) Labour Institutions Act gave the Respondent a statutory right of appeal notwithstanding debate over the former court's status; that following Highway Secondary School v Mmsoi Moi the review did not extinguish the right of appeal since the appeal grounds were wider; and that the stay order, granted after the 2010 Constitution came into force without hearing the Claimant, breached the constitutional right to be heard. The Court set the stay order aside forthwith and made no order for costs.

Key legal issues

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01

Right of appeal from the former Industrial Court to the Court of Appeal

Holding

The Respondent had a right to appeal to the Court of Appeal by virtue of Section 27 of the Labour Institutions Act.

Reasoning

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.

p. 3
02

Whether a dismissed review application bars a subsequent appeal

Holding

The review did not extinguish the Respondent's right of appeal because the appeal grounds were wider than the review grounds.

Reasoning

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.

p. 3
03

Ex parte stay order and the right to be heard under the Constitution of 2010

Holding

The stay order of 5th July 2011 was issued in fundamental breach of the constitutional right to be heard and was set aside.

Reasoning

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

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  • 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

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  1. 1.The stay of execution order issued on 5th July 2011 was set aside forthwith
  2. 2.No order for costs

Authorities

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Legislation

  • Constitution of Kenya (old)Section 65
  • Constitution of Kenya, 2010Article 50
  • Appellate Jurisdiction ActSection 3
  • Labour Institutions Act (repealed by the Industrial Court Act)Section 27
  • Industrial Court Act
  • Civil Procedure Rules, 2010Order 45
  • Industrial Court (Procedure) Rules

Cases cited (1)

  • The Chairman Board of Governors Highway Secondary School Vs William Mmsoi Moi
    [2007] eKLR
Jurisdiction invoked
Original and incidental jurisdiction of the (former) Industrial Court over applications in pending industrial disputes

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, "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.