Kenya Game Hunting & Safari Workers Union v Micato Safaris Ltd

4. Having considered the report in its ruling dated June 17, 2016, the ELRC (Abuodha J. Nelson, J) directed that the issues that were the subject of the CBA period of 2012-2014 be revisited during the bargaining of the CBA for the next cycle, that is to say, 2014-2016. In reaching his decision, the learned judge observed that: “ The Central Planning & Monitoring Unit report has made the following important observations. First, the wage dierential between the management and unionisable sta is minimal. Further, the dierence between the wages oered by the respondent and its counterparts in the sector and the industry in general is also minimal. The report has noted that the respondent was struggling to keep the company aoat due to negative travel advisories.” 5. Dissatised by the directions of the ELRC, the appellants moved to this court on appeal on 6 grounds set out in its memorandum of appeal dated August 10, 2016, namely that the learned judge erred in law: by failing to observe the parties negotiation records and the CPMU report recommendations; by saying that the three employees whose wage was increased together with the management, were non-members of the union; by failing to deal with the issues in the dispute; and by his evaluation and analysis of pleadings and evidence adduced, and in failing to consider the appellant’s records. 6. By a notice of motion dated September 8, 2016, and made under rules 1(2), 42(1) and 84 of the Court of Appeal Rules, 2010 the respondent prayed that the appeal be struck out; and that the costs of the application and of the appeal be borne by the appellant. 7. The respondent’s motion was supported by the annexed adavit of Winnie Maina (the respondent’s Human Resource Manager) sworn on September 8, 2016, and was made on the grounds that: “ (a) The record of appeal is incurably defective in that i. The memorandum of appeal annexed is drawn in a format which is unknown in law. ii. There are no pleadings of the superior court annexed in the record. iii. The record does not contain the written submissions led in the superior court. iv. The record contains fresh documents which did not form part of the record of the superior court and further, which are not required in a record of appeal. v. The notice of appeal was not served on the respondent and only came to the knowledge of the respondent when it was served as annexed in the record of appeal. vi. The record does not contain a certicate of correctness. b) The defective record of appeal and the memorandum of appeal violate the respondent’s right to fair hearing. c) Striking out the incompetent record of appeal is necessary to prevent an abuse of the process of this honourable court and for the ends of justice.” https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1178/eng@2022-10-21 2

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8. The application was opposed as evidenced by the replying adavit of Josphat Mailu Ndolo (the appellant’s General Secretary) sworn on June 9, 2017. According to Ndolo, “human beings are bound to error,” but that they had corrected the record of appeal as ordered by the court. To this end, the appellant led a supplementary record of appeal on June 21, 2017. 9. Be that as it may, this court exercises great caution not to shut the door to the seat of justice in determination of an application to strike out an appeal on account of formal or technical infractions, particularly in a case where such an application is heard together with the main appeal with the consent of the parties. Indeed, article 159(2) (d) of the Constitution requires the court to administer justice without undue regard to procedural technicalities. That said, we take to mind this court’s majority decision of Ouko & Jamila Mohamed, JJ.A. in Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 6 others [2013] eKLR where they had this to say: “ Deviations from and lapses in form and procedures which do not go to the jurisdiction of the court, or to the root of the dispute or which do not at all occasion prejudice or miscarriage of justice to the opposite party ought not be elevated to the level of a criminal oence attracting such heavy punishment of the oending party, who may in many cases be innocent since the rules of procedure are complex and technical. Instead, in such instances the court should rise to its highest calling to do justice by sparing the parties the draconian approach of striking out pleadings. It is globally established that where a procedural infraction causes no injustice by way of injurious prejudice to a person, such infraction should not have an invalidating eect. Justice must not be sacriced on the altar of strict adherence to provisions of procedural law which at times create hardship and unfairness.” 10. While article 159(2) (d) is by no means a panacea to incurable defects in a record of appeal, the nature of the trade dispute and of the appeal at hand impels us to determine the substantive appeal on its merits. Moreover, the formal defects of the record of appeal as put to us do not go to the jurisdiction of the court and have largely been cured through the supplementary record of appeal. In our considered view, the procedural infractions complained of do not in any way cause injustice by way of injurious prejudice to the respondent. Accordingly, we are not inclined to elevate those infractions to such a level as to sacrice justice on the altar of strict adherence to the rules of procedure. In the circumstances, we disallow the respondent’s motion and proceed to determine the appeal on its merits. 11. Turning to the merits of the appeal, this being a rst appeal, it is our duty, in addition to considering submissions by the appellant and learned counsel for the respondent, to analyze and re-assess the report and other evidence on record and reach our own conclusions in the matter. This approach was adopted by this court in Arthi Highway Developers Limited v West End Butchery Limited and 6 others [2015] eKLR citing the case of Selle v Associated Motor Boat Co [1968] EA p123. 12. In Selle’s case (ibid), the court held that: “ An appeal to this court from a trial by the High Court (as well as the ELRC) is by way of retrial, and the principles upon which this court acts in such an appeal are well settled. Briey put, they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions ….” 13. Having considered the record of appeal, the written and oral submissions of the appellant’s representative and of the learned counsel for the respondent, we are of the considered view that the appeal herein stands or falls on our ndings on three main issues, namely: whether, in his directions, the learned judge considered the record of previous negotiations leading to previous CBAs; whether https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1178/eng@2022-10-21 3

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the learned judge eectively dealt with the substantive issues in the dispute; whether the learned judge properly evaluated and analysed the pleadings and evidence put before him; and what orders ought we to make in determination of this appeal. 14. On the rst issue, we nd nothing to suggest that the learned judge did not take cognisance of success in previous negotiations leading to various CBAs, the only exception being the 2012-2014 negotiations from which the dispute at hand arose. But for the general allegation that he “… did not consider previous negotiation records,” the appellant does not elaborate what, in those records, could have led to a dierent nding and directions. 15. On the second and third issues, we do not agree with the appellant that the learned judge erred in failing to consider and eectively deal with the substantive issues in dispute, or that he failed to consider the pleadings and evidence put to him, including the recommendations contained in the CPMU report by which he was properly guided. 16. Paragraphs 7 to 12 of the impugned ruling speak for themselves. The learned judge had this to say in paragraph 11: “ 11. 17. The court has considered submissions by the disputants and has also had the benet of reviewing the technical reports submitted by [the] Central Planning & Monitoring Unit. Whereas the court is usually not bound by technical reports but where they are credible and give a professional and technical analysis of the issue in dispute they become persuasive authority on the issue in dispute which in absences of other factors to the contrary, will be relied on.” Read with paragraphs 7, 8, 9, 10 and 12, the content of which we need not replicate here, paragraph 11 settles the second and third issues. This leaves us with the question as to what orders ought we to make in determination of this appeal. Having considered the record of appeal together with the written and oral submissions of the parties, we nd that this appeal fails. Accordingly, we hereby order and direct that: a. The respondent’s notice of motion dated September 8, 2016 be and is hereby dismissed; b. The appellant’s appeal be and is hereby dismissed; c. The ruling of the ELRC (Abuodha J. Nelson, J) dated June 17, 2016 be and is hereby upheld; and d. Each party shall bear their own costs of the application and of the appeal. DATED AND DELIVERED AT NAIROBI THIS 21ST DAY OF OCTOBER, 2022. J. M’INOTI ............................................ JUDGE OF APPEAL H. A. OMONDI ........................................... DR. K. I. LAIBUTA JUDGE OF APPEAL ........................................... https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1178/eng@2022-10-21 4

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JUDGE OF APPEAL I certify that this is a true copy of the original Signed DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1178/eng@2022-10-21 5

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