Emma Carol Wanjiru v Airworks (K) Limited [2016] KEELRC 1029 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Is it lawful for a court to consider an application for review of a judgement in respect of which a notice of appeal has been filed but the actual appeal has not been filed?
- 2.If the answer to (i) is in the affirmative, does the application for review have merit?
Key legal issues
#Whether an application for review may be entertained where a notice of appeal has been filed but no appeal has been preferred
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.
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.
Whether the review had merit on the ground that the Employment Act 2007 was applied retrospectively
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.
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.
Legal principles established
#- 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
#- 1.The application for review is dismissed with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- 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
Relief refused
#Review of the judgment so as to apply the repealed Employment Act Cap 226 instead of the Employment Act 2007
The erroneous reference to the Employment Act 2007 did not vary the outcome; the factual findings stood and the applicant's remedy was appeal
Review of the award from USD 4,000 to Kshs 295,200 (50% of monthly pay)
The claimant's salary was USD 4,000 per month in terms of the contract, a fact not in dispute; the entitlement to payment in lieu of notice followed from the finding of unlawful termination
Costs
The application is dismissed with costs.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In the final analysis the application is dismissed with costs.
A Notice of appeal is not an appeal but just a formal notification of an intended appeal.
It follows that Rule 32 of the Employment and Labour Relations Court (procedure) rules 2010 is to be read subject to section 80 of the Civil Procedure Act cap 21 of Laws of Kenya
If the applicant is aggrieved by this finding the proper course of action is to file an appeal. No ground to review this finding of fact is disclosed in the application.
Issues in the judgment
#The judgment's body discusses the Court of Appeal decision in The Chairman Board of Governors Highway Secondary School Vs William Mmosi Moi but the quotation is cut off before any content from that decision appears.
The claimant's name and the case number of the suit/review application are not stated anywhere in the judgment extract.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.