University Academic Sta Union (UASU) v Ministry of Education & 5 others (Civil Application E545 of 2023) [2024] KECA 1905 (KLR) (28 March 2024) (Ruling) Neutral citation: [2024] KECA 1905 (KLR) REPUBLIC OF KENYA IN THE COURT OF APPEAL AT NAIROBI CIVIL APPLICATION E545 OF 2023 K M'INOTI, F TUIYOTT & FA OCHIENG, JJA MARCH 28, 2024 BETWEEN UNIVERSITY ACADEMIC STAFF UNION (UASU) ........................... APPLICANT AND MINISTRY OF EDUCATION ...................................................... 1ST RESPONDENT MINISTRY OF LABOUR ............................................................. 2ND RESPONDENT ATTORNEY GENERAL ............................................................... 3RD RESPONDENT SALARIES AND REMUNERATION COMMISSION .............. 4TH RESPONDENT INTER PUBLIC UNIVERSITIES, COUNCILS CONSULTATIVE FORUM OF THE FEDERATION OF KENYAN EMPLOYERS ..................... 5TH RESPONDENT KENYA UNION OF DOMESTIC, HOTELS, EDUCATION, INSTITUTIONS AND HOSPITAL WORKERS ...................................................... 6TH RESPONDENT (Being an application to withdraw the Notice of Appeal brought against the Judgment of the Employment and Labour Relations Court (M. Onyango, J) delivered on 15th January 2021 in ELRC CBA No. 1, 2 and 3 of 2020) RULING 1. By dint of Rule 85(1) of the Court of Appeal Rules, 2022, a party who lodges a notice of appeal but fails to institute the appeal within the appointed time shall be deemed to have withdrawn the notice of appeal. The Court may, on its own motion or on application by any other party, make such an order. 2. We are moved by University Academic Sta Union (UASU) through a notice of motion dated 16th October 2023 to make such order in respect to the notice of appeal led by the 1st to 4th respondents against the judgment of the employment and Labour Relations Court (Maureen Onyango, J.) in CBA https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1905/eng@2024-03-28 1
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No. 1 of 2020, CBA No. 2 of 2020 and CBA No. 3 of 2020. A second prayer is that the stay orders issued against that judgment in Nairobi Court of Appeal Civil Application No. E418 of 2021, Ministry of Education and 4 Others vs Kenya Union of Domestic, Hotels, Education, Institutions and Hospital Workers, be set aside and or vacated. 3. In support of the motion, it is stated that the notice of appeal was led on 15th January 2022 and no appeal has been led and served on the applicant to date. 4. Kenya Union of Domestic, Hotels, Education, Institutions and Hospital Workers, the 6th respondent, supports the motion. 5. The delay in ling the appeal is conceded by the Attorney General, the 3rd respondent, who through an adavit by learned State Counsel Christine Oyugi sworn on 30th September 2024, pleads: “ That we undertake to le the record of appeal within the next 14 days to enable the court determine the issues that are pending for appeal.” 6. We have considered the written submissions by the applicant as highlighted by learned counsel Miss Nyakundi who represented it at plenary hearing, those of the Attorney General highlighted by Mr. Eredi State Counsel, the oral submissions by learned counsel Mr. Wahome appearing for the 4th respondent and those of Mr. Jaoko learned counsel for the 6th respondent. 7. The motion before us is unanswerable. The Attorney General has breached the time prescribed by Rule 84 for instituting an appeal. This was readily conceded. Ms. Christine Oyugi blames the delay in re-allocation of the le on or about April 2023 from Ms. Amelia Chesyina to herself and that nonling of the appeal had not been captured in the hand-over notes. 8. While those may be good reasons for seeking extension of time for ling of the appeal out of time, no such application (which in any event is for a single judge) is before us. 9. We nd the notice of motion dated October 16, 2023 has merit and do hereby deem the notice of appeal led by the 1st to 4th respondents on January 15, 2021 against the decision of the ELRC to be withdrawn. Regarding the discharge or setting aside of the stay orders issued in E418 of 2021, the stay was to last until the appeal is heard and determined. For that reason, the stay lapses automatically. Costs of the motion shall be borne by the 1st to 4th respondents. DATED AND DELIVERED AT NAIROBI THIS 28TH DAY OF MARCH, 2025. K. M’INOTI ………………………………………… JUDGE OF APPEAL F. TUIYOTT ………………………………………… JUDGE OF APPEAL F. OCHIENG ………………………………………… JUDGE OF APPEAL I certify that this is a true copy of the original. https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1905/eng@2024-03-28 2
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Signed DEPUTY REGISTRAR. https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1905/eng@2024-03-28 3
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