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ELRCPartially AllowedIndustrial Court Petition Number 20 of 2012 Nairobi (Notice of Motion dated 5th August 2013)· [2013] KEELRC 710 (KLR)

Marangu Rucha & another v Attorney General & 10 others [2013] KEELRC 710 (KLR)

Industrial Court of Kenya
16 August 2013
LNLinnet Ndolo
1,632 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 freed two doctors on bail but declined to rule on their case because the same issue was already before the Court of Appeal.

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 J on 16th August 2013, determined a Notice of Motion dated 5th August 2013 by Dr. Marangu Rucha and Dr. Walter Konya, Doctors in Charge at two St. Mary's hospitals. The applications sought stay of execution of committal orders to civil jail for contempt of the reinstatement Award in Industrial Court Cause No 538 of 2011, release of the 1st Petitioner from Industrial Area Prison, and consolidation of that Cause with Industrial Court Petition No 20 of 2012. The committal orders had been issued by Nzioki wa Makau J after the 3rd-10th Respondents were not reinstated pursuant to an Award by Mukunya J, the import of which was subject to an intended appeal. The Petitioners, who had filed a Notice of Appeal from Nduma Nderi J's dismissal of their Petition and a stay application in the Court of Appeal fixed for hearing on 14th October 2013, argued through Mr. Mwangi that their personal freedoms under Articles 50(2)(q) and 51(1) were at stake. The Respondents and the Interested Party opposed, contending there was nothing to consolidate or stay, and that the Court of Appeal application pre-empted this Court. The Court declined to deal with the substance of the application, holding that the pending Court of Appeal application pre-empted its jurisdiction, but granted a temporary reprieve: reinstatement of the Kshs. 1,000,000 cash bails for both Petitioners as security for attendance at the Court of Appeal, release of the 1st Petitioner forthwith, and suspension of all warrants against the 2nd Petitioner, pending further orders by the Court of Appeal. No order for costs was made.

Key legal issues

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01

Whether the Industrial Court could determine the substance of a stay application pending a similar application in the Court of Appeal

Holding

The Court declined to deal with the substance, holding that the pending Court of Appeal application pre-empted its jurisdiction.

Reasoning

The Petitioners had filed a Notice of Appeal and a stay application in the Court of Appeal with similar prayers, fixed for hearing on 14th October 2013. Relying on Nduma Nderi J's decision in Patrick Njuguna Kariuki v Del Monte (K) Limited, the Court held that the filing of such an application pre-empts the Industrial Court's jurisdiction, leaving the trial court with very limited choices where a matter is pending before the Court of Appeal.

p. 5
02

Whether the Court could still grant temporary relief to protect the personal freedoms of the Petitioners

Holding

The Court granted a temporary reprieve reinstating cash bails, releasing the 1st Petitioner from custody and suspending warrants against the 2nd Petitioner, pending the Court of Appeal's further orders.

Reasoning

Despite declining jurisdiction over the substance, the Court held it could not ignore the stakes for personal liberty: the 1st Petitioner had been in custody since 2nd August 2013 and the 2nd faced arrest and committal. Substantive justice required temporary measures pegged to the pending Court of Appeal application, with the reinstated cash bails serving as security for attendance.

p. 5

Legal principles established

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  • Where a matter is pending before the Court of Appeal, a trial court's choices are very limited and filing an application in the Court of Appeal pre-empts the lower court's jurisdiction over the substance.
  • A court must render substantive justice and cannot ignore the fact that personal freedoms are at stake, even where it declines to determine the substance of an application.

Court orders

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  1. 1.Refusal to deal with the substance of the application, which is pending before the Court of Appeal
  2. 2.Reinstatement of the cash bail of Kshs. 1,000,000 posted on 3rd August 2012 on behalf of the 1st Petitioner, Dr. Marangu Rucha, to secure his attendance at the Court of Appeal on 14th October 2013 and thereafter as required
  3. 3.Setting at liberty of the 1st Petitioner, Dr. Marangu Rucha, held at Industrial Area Prison, pending further orders by the Court of Appeal
  4. 4.Direction to the officer in charge of Industrial Area Prison to release Dr. Marangu Rucha forthwith
  5. 5.Reinstatement of the cash bail of Kshs. 1,000,000 posted on 3rd August 2012 on behalf of the 2nd Petitioner, Dr. Walter Konya, to secure his attendance at the Court of Appeal on 14th October 2013 and thereafter as required
  6. 6.Suspension of all warrants of arrest issued against Dr. Walter Konya on account of the subject matter, pending further orders by the Court of Appeal

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 50(2)(q)
  • Constitution of Kenya, 2010Article 51(1)

Cases cited (1)

  • Patrick Njuguna Kariuki Vs Del Monte (K) Limited
    [2013]eKLR
Jurisdiction invoked
Constitution of Kenya, 2010 - Articles 50(2)(q) and 51(1) invoked; Industrial Court's limited role where matter is pending before the Court of Appeal

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (9)

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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, "Marangu Rucha & another v Attorney General & 10 others [2013] KEELRC 710 (KLR)", Case Analysis (2013). Industrial Court Petition Number 20 of 2012 Nairobi (Notice of Motion dated 5th August 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/710/eng@2013-08-16

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