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ELRCDismissedNot stated in extract (Review application arising from judgment delivered 21st August 2015)· [2016] KEELRC 1029 (KLR)

Emma Carol Wanjiru v Airworks (K) Limited [2016] KEELRC 1029 (KLR)

Employment and Labour Relations Court
24 June 2016
2,341 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court dismissed an employer's attempt to overturn an unfair termination award, ruling that filing a notice of appeal does not block a review application.

What this practically means

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Executive summary

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The respondent in an employment suit in which the claimant had succeeded applied on 30th October 2015 for review of the judgment delivered on 21st August 2015, having earlier filed a notice of appeal on 10th September 2015. The applicant argued that the court had erred in applying the Employment Act 2007 retrogressively to a termination occurring on 20th September 2007, before the Act came into force on 2nd June 2008, and that the award should have been computed under the repealed Employment Act Cap 226 in Kenya shillings (50% of Kshs 295,200) rather than USD 4,000. The claimant filed a preliminary objection that the court lacked jurisdiction to entertain a review where an appeal had been lodged, and that the application disclosed no grounds for review under Rule 32 of the ELRC (Procedure) Rules 2010. The court framed two issues. On jurisdiction, it held that Rule 32 does not fetter an applicant by reason of a pending appeal but must be read subject to section 80 of the Civil Procedure Act; adopting the Yani Haryanto line of authority as applied by Odunga J in Surgipharm, it found that a notice of appeal is a mere notification of intention to appeal, not an appeal, and no memorandum of appeal had been filed. The review application was therefore properly before the court. On the merits, the court held that its findings — that the claimant lost her job because of her pregnancy, and that her contractual salary was USD 4,000 — were findings of fact and contractual interpretation unaffected by which statute applied. The erroneous reference to the Employment Act 2007 did not vary the outcome; the applicant's remedy was an appeal. The application for review was dismissed with costs on 24th June 2016.

Key legal issues

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01

Whether an application for review may be entertained where a notice of appeal has been filed but no appeal has been preferred

Holding

Yes. A notice of appeal is a mere notification of intention to appeal, not an appeal; the court retains jurisdiction to hear the review application.

Reasoning

Rule 32(1) of the ELRC Procedure Rules does not fetter an applicant on the basis of the existence of an appeal, but is read subject to section 80 of the Civil Procedure Act. Relying on the Yani Haryanto line of authority as adopted by Odunga J in Surgipharm, the court held that an appeal is only instituted when the record of appeal is lodged. As at the time the ruling was reserved, no memorandum of appeal had been filed, so the applicant was within its rights to apply for review.

p. 3
02

Whether the review had merit on the ground that the Employment Act 2007 was applied retrospectively

Holding

No. Although the court erroneously referred to the Employment Act 2007, the factual findings of unlawful termination on account of pregnancy and contractual entitlement to USD 4,000 would be the same under either statute.

Reasoning

The findings that the claimant lost her job because of her pregnancy and that her salary was USD 4,000 per month were findings of fact and contractual interpretation not dependent on the 2007 Act. An applicant aggrieved by findings of fact must appeal; no ground for review was disclosed. The misapplication of the statute did not vary the outcome.

p. 4

Legal principles established

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  • A notice of appeal is not an appeal; its filing does not oust the trial court's jurisdiction to entertain an application for review before the memorandum of appeal is filed.
  • Rule 32 of the ELRC (Procedure) Rules 2010 must be read subject to section 80 of the Civil Procedure Act.

Court orders

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  1. 1.The application for review is dismissed with costs
Jurisdiction invoked
Rule 32(1) of the Employment and Labour Relations Court (Procedure) Rules 2010, read subject to section 80 of the Civil Procedure Act, Cap 21, Laws of Kenya

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, "Emma Carol Wanjiru v Airworks (K) Limited [2016] KEELRC 1029 (KLR)", Case Analysis (2016). Not stated in extract (Review application arising from judgment delivered 21st August 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1029/eng@2016-06-24

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