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Supreme CourtPartially AllowedMotion 17 of 2014

Telkom Kenya Limited v Ochanda (Suing on his own Behalf and on Behalf of 996 Former Employees of Telkom Kenya Limited)

Supreme Court of Kenya
13 May 2015
Philip Kiptoo TunoiP.K. TunoiMohammed Khadhar IbrahimM.K. IbrahimJackton Boma OjwangJ.B. OjwangSmokin Charles WanjalaS. WanjalaNjoki Susanna NdunguN.S. Ndungu
3,885 words in judgment
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The bottom line

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Supreme Court can review Court of Appeal’s refusal to certify a public importance appeal.

What this practically means

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The Supreme Court ruled it has the power to review a Court of Appeal decision that denies a party permission to appeal on grounds of public importance. It also said that even if a notice of appeal is filed late, the Court can accept it if there is a good reason. The Court found that this case, involving discrimination and employment law, raises issues that affect many people and deserves to be heard on its merits.

Executive summary

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This was an application by Telkom Kenya Limited seeking review of a ruling by the Court of Appeal (Nambuye, Ouko and Musinga, JJA.) delivered on 9th April 2014, which had dismissed the applicant's application for leave to appeal to the Supreme Court. The applicant argued that the intended appeal raised matters of general public importance under Article 163(4)(b) of the Constitution. The respondent contested the Supreme Court's jurisdiction to review a denial of certification, arguing that Article 163(5) only contemplates review of certification granted, not denied. The respondent also argued that the applicant had failed to file a notice of appeal within 14 days as required by Rule 31(1) of the Supreme Court Rules, 2012. The Supreme Court, in a unanimous decision, allowed the application. The Court held that it has jurisdiction to review both decisions granting or denying certification, relying on its earlier decision in Hermanus Phillipus Steyn v. Giovanni Gnecchi-Ruscone. The Court further held that while the notice of appeal is mandatory, it has inherent jurisdiction to admit an appeal filed out of time, guided by Article 159(2)(d) of the Constitution. The Court found that the intended appeal involved matters of general public importance, including issues of discrimination, public policy, human rights, and employment laws affecting former public servants retrenched during privatization. The Court set aside the Court of Appeal's ruling, certified the appeal as involving matters of general public importance, granted leave to appeal, and ordered the notice of appeal to be filed within 14 days. The Court also refused the respondent's request to condition certification on the deposit of Kshs. 3.2 billion as security, finding that such a condition would impede access to justice under Article 48 of the Constitution. Costs were ordered to be in the appeal.

Questions the Court framed

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

  1. 1.Whether this Court has jurisdiction to review a decision of the Court of Appeal denying certification for leave to appeal under Article 163(5) of the Constitution.
  2. 2.Whether the failure to file a notice of appeal within 14 days under Rule 31(1) of the Supreme Court Rules, 2012, is fatal to the application for review.
  3. 3.Whether the intended appeal involves matters of general public importance warranting certification.
  4. 4.Whether certification for leave should be conditioned on the applicant depositing Kshs. 3.2 billion as security.

Key legal issues

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01

Whether the Supreme Court has jurisdiction to review a decision of the Court of Appeal denying certification for leave to appeal under Article 163(5) of the Constitution.

Holding

The Supreme Court has jurisdiction to review both decisions granting or denying certification, as Article 163(5) should be broadly interpreted.

Reasoning

The Court relied on its earlier decision in Hermanus Phillipus Steyn v. Giovanni Gnecchi-Ruscone, where it held that a party may come for review of the decision granting leave or denying leave. The Court reasoned that certification under Article 163(5) should be broadly read as alluding to certification by the Court that a matter of public importance is involved, or is not involved. This interpretation ensures that the Supreme Court can correct errors by the Court of Appeal in denying certification, thereby safeguarding access to justice.

p. 5
02

Whether the failure to file a notice of appeal within 14 days under Rule 31(1) of the Supreme Court Rules, 2012, is fatal to the application for review.

Holding

While the notice of appeal is mandatory, the Court has inherent jurisdiction to admit an appeal filed out of time if sufficient explanation is provided, guided by Article 159(2)(d) of the Constitution.

Reasoning

The Court acknowledged that Rule 31(1) is expressed in mandatory terms, but noted that it has inherent jurisdiction to extend time under Rule 53 of the Supreme Court Rules, 2012. The Court emphasized that procedural technicalities should not trump substantive justice, citing Article 159(2)(d) of the Constitution. However, the Court did not strike out the application for failure to file a notice of appeal, instead granting leave to file it within 14 days of the order.

p. 7
03

Whether the intended appeal involves matters of general public importance warranting certification.

Holding

The intended appeal involves matters of general public importance, as it raises issues of discrimination, public policy, human rights, and employment laws that transcend the circumstances of the parties.

Reasoning

The Court applied the principles from Hermanus and Malcolm Bell, finding that the issues raised—such as whether discrimination is a legitimate ground for an award in labour law, whether differentiation on the basis of age is permissible, and whether Civil Service directives apply to state-owned companies—affect considerable numbers of persons, including former public servants retrenched during privatization. The Court concluded that the dominant issue of discrimination is a cardinal issue of law of general public importance requiring final resolution by the Supreme Court.

p. 9
04

Whether certification for leave should be conditioned on the applicant depositing Kshs. 3.2 billion as security.

Holding

The Court refused to impose such a condition, as it would impede the right of access to justice under Article 48 of the Constitution.

Reasoning

The Court found that the respondents did not demonstrate how they arrived at the sum of Kshs. 3.2 billion, and requiring such a large deposit without legal justification would violate Article 48 of the Constitution, which ensures access to justice. The Court also noted that the respondents did not adduce evidence to support their claim that the applicant might be transferred to another company, and that laws governing such transfers safeguard the interests of the respondents.

p. 4

Legal principles established

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  • The Supreme Court can review both a grant or denial of certification for leave to appeal under Article 163(5).
  • A late notice of appeal may be accepted if the applicant provides a sufficient explanation for the delay.
  • For a case to be certified as of general public importance, the issue must go beyond the parties and affect the public interest.
  • Courts cannot impose a large security deposit that would block a person’s right to access justice.
  • Discrimination in employment can be a matter of general public importance warranting Supreme Court appeal.

Court orders

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  1. 1.The application dated 23rd April 2014 is hereby allowed.
  2. 2.The Ruling and Orders of the Court of Appeal in Civil Application No. Sup. 24 of 2013, delivered on 9th April, 2014 are hereby set aside.
  3. 3.This appeal is certified as involving matters of general public importance, and leave to appeal is hereby granted.
  4. 4.The Notice of Appeal shall be filed and served within 14 days of the date hereof.
  5. 5.Costs shall be in the appeal.

The bench

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

Philip Kiptoo Tunoi
majority
Mohammed Khadhar Ibrahim
majority
Jackton Boma Ojwang
majority
Smokin Charles Wanjala
S. WanjalaSCJ
Currently serving
majority
Njoki Susanna Ndungu
N.S. NdunguSCJ
Currently serving
majority
On appeal from
Court of Appeal of Kenya
Civil Application No. Sup. 24 of 2013
Jurisdiction invoked
Article 163(4)(b) of the Constitution of Kenya

Relief refused

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The respondent's prayer that certification be conditioned on the applicant depositing Kshs. 3.2 billion as security.

The respondents did not demonstrate how they arrived at the sum, and requiring such a large deposit without legal justification would impede the right of access to justice under Article 48 of the Constitution.

p. 4

Costs

Costs shall be in the appeal.

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.

A party may come for review of the decision granting leave or denying leave. Hence, we hold that certification under article 163 5 should be broadly read as alluding to certification by the Court that a matter of public importance is involved, or is not involved.
p. 5 Jurisdiction of the Supreme Court to review denial of certification
In instances where there is delay in filing the notice of appeal, this Court has inherent jurisdiction to admit such an appeal, provided sufficient explanation is proffered for the cause of delay.
p. 7 Inherent jurisdiction to admit appeal out of time
We find that this case involves the interpretation of public policy, human rights, and employment laws. This is clear from the issues raised for determination: whether discrimination is a legitimate ground, independent of Statute and contract, on which a Court can make an award to an employee in labour law
p. 9 Matters of general public importance in employment and discrimination
To require the deposit of such a large amount of money by the applicant, without any legal justification, would impede the right of access to justice, in terms of Article 48 of the Constitution.
p. 4 Access to justice and security for costs

Key timeline

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2014-04-09
Court of Appeal delivered ruling denying certification for leave to appeal.
2014-04-23
Telkom Kenya filed application at Supreme Court to review the denial.
2015
Supreme Court allowed the application, set aside the Court of Appeal ruling, and granted certification.

Practical implications

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For lawyers

Challenge denial of certification

Lawyers can now directly petition the Supreme Court to review a Court of Appeal decision that refuses to certify a case as one of general public importance. This provides a clear route to correct errors by the lower court. Ensure you file a notice of appeal promptly, but if late, provide a strong explanation for the delay to avoid dismissal.

For businesses

Employment discrimination risks

Businesses, especially state-owned companies, must be aware that discrimination claims may be elevated to public importance appeals. The Supreme Court has signaled that differential treatment of employees (e.g., based on age or former public service status) can be a constitutional issue. Review your HR policies and retirement schemes to ensure they are non-discriminatory and align with public policy.

For individuals

Access to justice protected

Individuals who face a denial of leave to appeal from the Court of Appeal can seek review from the Supreme Court. The Court also protects against excessive financial barriers—such as requiring a huge deposit—that would prevent you from pursuing an appeal. If you have a case involving discrimination or other public interest issues, you have a stronger chance of being heard at the highest level.

Frequently asked questions

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Can the Supreme Court review a decision of the Court of Appeal that refuses to certify an appeal in Kenya?+

Yes, the Supreme Court has jurisdiction to review both a grant and a denial of certification under Article 163(5) of the Constitution. This ensures that the Court can correct errors if the Court of Appeal wrongly refuses to allow an appeal on a matter of general public importance.

What happens if I miss the 14-day deadline to file a notice of appeal to the Supreme Court in Kenya?+

The notice of appeal is mandatory, but the Supreme Court has the power to accept a late filing if you provide a good reason for the delay. The Court emphasizes substantive justice over procedural technicalities, so you should explain the cause of delay clearly when applying for extension of time.

What makes a case a matter of general public importance for the Supreme Court in Kenya?+

The issue must go beyond the interests of the parties and affect a significant number of people or involve a question of public policy, human rights, or constitutional interpretation. The Court looks at whether the case raises a cardinal issue of law that requires final determination by the Supreme Court.

Can the Supreme Court order an appellant to deposit a large sum of money as security for costs in Kenya?+

The Supreme Court refused to order a deposit of Kshs. 3.2 billion in this case, stating that such a requirement without legal justification would violate the right of access to justice under Article 48 of the Constitution. Courts should not impose conditions that effectively block a person from appealing.

Later judgments citing this (16)

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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, "Telkom Kenya Limited v Ochanda (Suing on his own Behalf and on Behalf of 996 Former Employees of Telkom Kenya Limited)", Case Analysis (2015). Motion 17 of 2014. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2015/18/eng@2015-05-13

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