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IndustrialDismissedCause No 2355 of 2012· [2014] KEIC 117 (KLR)

Onesmus Musyoki Kilonzo v Nation Media Group Limited (Cause 2355 of 2012) [2014] KEIC 117 (KLR)

Employment and Labour Relations Court
25 June 2014
885 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employment court refused to pause its ruling because the appeal had no real chance of success, and personally penalised the applicant's lawyers with costs.

What this practically means

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Executive summary

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This is a ruling of the Employment and Labour Relations Court at Nairobi (Nzioki Wa Makau J) on the Respondent/Applicant's Notice of Motion dated 26 May 2014 seeking a stay of the court's orders pending an intended appeal. The stay related to a ruling delivered on 24 March 2014 dismissing the Respondent's preliminary objection, which had been predicated on Section 45(3) of the Employment Act 2007 on the contention that it barred the Claimant's suit. The court had dismissed that objection because Section 45(3) had been declared unconstitutional by the High Court in Samuel Momanyi v SDV Transami and Anor. Counsel for the Respondent argued the intended appeal was arguable and would be rendered nugatory absent a stay; the Claimant opposed, insisting the applicant demonstrate an arguable appeal. The court set out the settled principles from Halai & Another v Thorton & Turpin (1963) Ltd and Hassan Guyo Wakalo v Straman East Africa Ltd: sufficient cause, substantial loss, security, absence of unreasonable delay, and that the appeal not be rendered nugatory. Turning to constitutional supremacy under Articles 1, 2(4) and 165, and drawing on Marbury v Madison, the court held the intended appeal had no chance of success since the High Court's jurisdiction to invalidate unconstitutional statutes was beyond question. The application was dismissed with costs, ordered to be paid personally by the Respondent's advocates.

Key legal issues

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01

Whether stay of execution/orders pending appeal should be granted

Holding

The application failed to meet the thresholds for stay; the intended appeal was not arguable

Reasoning

The court applied the settled principles in Halai & Another v Thorton & Turpin (1963) Ltd and Hassan Guyo Wakalo v Straman East Africa Ltd: sufficient cause, substantial loss, security, absence of unreasonable delay and nugatory-ness must all be established. The applicant, seeking to appeal a ruling upholding a declaration that Section 45(3) of the Employment Act was unconstitutional, could not demonstrate an arguable appeal because the High Court's jurisdiction to invalidate statutes is constitutionally grounded.

p. 2
02

Whether the High Court had jurisdiction to declare Section 45(3) of the Employment Act unconstitutional

Holding

The High Court had jurisdiction under Article 165(3)(d)(i); any inconsistent law is void under Article 2(4)

Reasoning

Relying on the principle of constitutional supremacy and the Marbury v Madison lineage of judicial review, the court affirmed that only the judiciary interprets statutes and may invalidate legislation inconsistent with the Constitution. It upheld the High Court's declaration that Section 45(3) was unconstitutional, making any appeal against that premise fallacious.

p. 2

Legal principles established

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  • The High Court has jurisdiction under Article 165(3)(d)(i) to declare Acts of Parliament unconstitutional, and inconsistent laws are void under Article 2(4)
  • The conditions for stay pending appeal are sufficient cause, substantial loss, security, no unreasonable delay, and that the appeal not be rendered nugatory

Court orders

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  1. 1.The Respondent/Applicant's Notice of Motion application for stay pending appeal is dismissed
  2. 2.Costs of the application awarded to the Claimant/Respondent, to be paid personally by the advocates for the Respondent

Authorities

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Legislation

  • Constitution of Kenya 2010Article 1
  • Constitution of Kenya 2010Article 2(4)
  • Constitution of Kenya 2010Article 165
  • Constitution of Kenya 2010Article 165(3)(d)(i)
  • Employment Act 2007Section 45(3)

Cases cited (5)

  • Samuel Momanyi v SDV Transami and Anor
    [2012] eKLR
  • Halai & Another v Thorton & Turpin (1963) Ltd
    [1990] KLR 365
  • Hassan Guyo Wakalo v Straman East Africa Ltd
    [2013] eKLR
  • Marbury v Madison
    5 U.S. 137 (1803)
  • Samuel Kamau Macharia & Another v Kenya Commercial Bank Limited & 2 Others
    [2012] eKLR
On appeal from
High Court of Kenya
Samuel Momanyi v SDV Transami and Anor
Jurisdiction invoked
Inherent jurisdiction to stay orders pending appeal; Article 165 Constitution of Kenya 2010

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, "Onesmus Musyoki Kilonzo v Nation Media Group Limited (Cause 2355 of 2012) [2014] KEIC 117 (KLR)", Case Analysis (2014). Cause No 2355 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keic/2014/117/eng@2014-06-25

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