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Supreme CourtDismissedPetition (Application) 36 of 2019

Simon Gitau Gichuru v Package Insurance Brokers Ltd

Supreme Court of Kenya
4 September 2020
David Kenani MaragaD. K. MaragaPhilomena Mbete MwiluP. M. MwiluMohammed Khadhar IbrahimM. K. IbrahimSmokin Charles WanjalaS. C. WanjalaIsaac LenaolaI. Lenaola
2,174 words in judgment
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AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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Supreme Court can hear appeals on constitutional issues even if lower courts used ordinary laws.

What this practically means

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The Supreme Court ruled that it can hear an appeal involving constitutional rights, even if the Court of Appeal decided the case using an ordinary employment law instead of the Constitution. This is because the employment law was created to implement the constitutional right to equality. The case involved a former Kenya Airways employee who was dismissed after a spinal tumor diagnosis. The Supreme Court refused to strike out the appeal, saying the constitutional issue was properly raised from the start.

Executive summary

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The Respondent, Kenya Airways Limited, filed an application seeking to strike out the Petitioner's appeal to the Supreme Court on the ground that it did not involve interpretation or application of the Constitution under Article 163(4)(a). The Petitioner, a former employee, had been dismissed after being diagnosed with a spinal cord tumor. The Employment and Labour Relations Court found the termination unlawful and discriminatory under Article 27 of the Constitution, awarding damages. The Court of Appeal set aside the discrimination finding and the twelve-month salary award, holding that discrimination did not arise because only the Petitioner was sick. The Petitioner appealed to the Supreme Court. The Supreme Court dismissed the striking out application, holding that the appeal properly invoked its jurisdiction under Article 163(4)(a). The Court found that Article 27 of the Constitution was raised in the claim from inception and was considered by the trial court. Although the Court of Appeal addressed the issue through Section 5(3)(a) of the Employment Act rather than the Constitution, that section is a normative derivative of Article 27. The Court distinguished its earlier decision in Stanley Mombo Amuti v Kenya Anti-Corruption Commission, where the constitutional provision was only introduced in the Court of Appeal and addressed in passing. The Court also distinguished Aviation and Allied Workers Union of Kenya v. Kenya Airway Ltd & 3 Others, where there was only a mere reference to a generality of a constitutional provision. The Court concluded that the appeal involves interpretation and application of the Constitution and is rightly before it. Costs were ordered to be in the cause.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the appeal can be struck out under Article 163(4a) of the Constitution.

Key legal issues

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Whether the appeal involves interpretation or application of the Constitution under Article 163(4)(a) so as to be properly before the Supreme Court.

Holding

The appeal involves interpretation and application of the Constitution because Article 27 was invoked in the claim from inception, the trial court considered it, and the Court of Appeal's avoidance of it by addressing Section 5(3)(a) of the Employment Act (a normative derivative of Article 27) did not diminish its presence.

Reasoning

The Court examined the proceedings below and found that Article 27 of the Constitution was invoked in the claim before the trial court, which framed it as an issue and determined it. The Court of Appeal, while citing Article 27(4) and Section 5(3)(a) of the Employment Act, addressed the issue through the legislation rather than the Constitution. The Supreme Court held that Section 5(3)(a) is a normative derivative of Article 27, and the Court of Appeal's avoidance of the constitutional provision did not erase its presence in the claim. The Court distinguished this from cases where a constitutional provision was only introduced in the Court of Appeal and addressed in passing, or where there was only a mere reference to a generality of a constitutional provision. The Court concluded that the appeal properly invokes Article 163(4)(a) because the constitutional issue was present from the start and the legislation is a derivative of the Constitution.

p. 6

Legal principles established

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  • A constitutional right does not disappear just because a court applies a law that implements that right.
  • An appeal lies to the Supreme Court as of right if a constitutional issue was raised and addressed in the lower courts.
  • A law enacted to give effect to a constitutional provision is a 'normative derivative' of that provision.
  • The Court of Appeal's avoidance of a constitutional provision does not erase its presence in the case.
  • A mere reference to a general constitutional provision is not enough to invoke Supreme Court jurisdiction.

Court orders

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  1. 1.The Respondent's application for striking out the appeal dated 8th November 2019 is hereby dismissed.
  2. 2.Costs be in the cause.

The bench

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One judgment of the whole court — no separate or dissenting opinions.

David Kenani Maraga
majority

Wrote the judgment

Philomena Mbete Mwilu
P. M. MwiluDCJ
Currently serving
majority
Mohammed Khadhar Ibrahim
majority
Smokin Charles Wanjala
S. C. WanjalaSCJ
Currently serving
majority
Isaac Lenaola
I. LenaolaSCJ
Currently serving
majority
On appeal from
Court of Appeal of Kenya
Jurisdiction invoked
Article 163(4)(a) of the Constitution of Kenya, 2010

Relief refused

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Striking out of the appeal

The appeal involves interpretation and application of the Constitution as required under Article 163(4)(a) of the Constitution and is rightly before this Court.

p. 6

Costs

Costs be in the cause.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Avoidance of interpretation and application of Article 27 of the Constitution by the Court of Appeal did not diminish its presence in the claim, since even though it dealt with Section 5(3)(a) of the Employment Act, this section was a normative derivative of Article 27 of the Constitution.
p. 6 Jurisdiction of the Supreme Court under Article 163(4)(a) - normative derivative of constitutional provisions
We find the appeal involves interpretation and application of the Constitution as required under Article 163(4)(a) of the Constitution and rightly before this Court.
p. 6 Jurisdiction of the Supreme Court under Article 163(4)(a)
The Respondent's application for striking out the appeal dated 8th November 2019 is hereby dismissed.
p. 6 Final orders - dismissal of striking out application
Costs be in the cause.
p. 6 Costs order

Key timeline

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Unknown
John Mwangi Mwangi, a Kenya Airways employee, is dismissed after being diagnosed with a spinal cord tumor.
Unknown
Employment and Labour Relations Court finds termination unlawful and discriminatory under Article 27 of the Constitution, awards damages.
Unknown
Court of Appeal sets aside discrimination finding and award, holding discrimination did not arise because only the employee was sick.
2019-11-08
Kenya Airways files application to strike out the appeal to the Supreme Court.
Unknown
Supreme Court dismisses the striking out application, allowing the appeal to proceed.

Practical implications

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For lawyers

Draft appeals to preserve constitutional issues

When appealing to the Supreme Court under Article 163(4)(a), ensure the constitutional issue was raised from the trial court level. Even if the Court of Appeal decides using a statute that implements the constitutional right, the constitutional issue remains alive. Cite the specific constitutional provision and show it was addressed, not just mentioned in passing.

For businesses

Employment decisions may face constitutional review

If you terminate an employee and the case involves a constitutional right like equality, the Supreme Court may hear the appeal even if the lower courts used employment law. This means employment disputes with constitutional dimensions can reach the highest court, increasing litigation risk and cost. Ensure termination decisions are defensible under both employment law and the Constitution.

For individuals

Your constitutional rights can be enforced at Supreme Court

If you believe your constitutional rights were violated in an employment dispute, you can appeal to the Supreme Court even if the Court of Appeal decided using ordinary employment law. The key is to raise the constitutional issue from the beginning of your case. This ruling helps ensure that constitutional protections are not bypassed by lower courts using statutes.

Frequently asked questions

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Can I appeal to the Supreme Court in Kenya if my case involves a constitutional issue?+

Yes, under Article 163(4)(a) of the Constitution, you have an automatic right of appeal if a constitutional issue was raised and addressed in the lower courts. This applies even if the Court of Appeal decided the case using a law that implements the constitutional right, like the Employment Act.

What is a normative derivative in Kenyan constitutional law?+

A normative derivative is a law enacted to give effect to a constitutional provision. For example, Section 5(3)(a) of the Employment Act implements Article 27 of the Constitution on equality. The Supreme Court says such laws do not replace the constitutional right; the right remains alive for appeal purposes.

Does the Court of Appeal's avoidance of the Constitution kill my appeal to the Supreme Court in Kenya?+

No. The Supreme Court ruled that if the constitutional issue was raised from the start and the lower courts addressed it (even through a statute), the Court of Appeal's avoidance of the constitutional provision does not erase it. Your appeal can still proceed under Article 163(4)(a).

What happened in the John Mwangi Mwangi v Kenya Airways case?+

A Kenya Airways employee was dismissed after a spinal tumor diagnosis. The lower court found discrimination under Article 27 of the Constitution. The Court of Appeal reversed that, using employment law. The Supreme Court refused to strike out the employee's appeal, saying the constitutional issue was properly raised and can be heard.

Later judgments citing this (12)

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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, "Simon Gitau Gichuru v Package Insurance Brokers Ltd", Case Analysis (2020). Petition (Application) 36 of 2019. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2020/29/eng@2020-09-04

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