Principles that Govern Matters of General Public Importance 

What types of appeals lay from the Court of Appeal to the Supreme Court

What were the principles to determine whether a matter was of general public importance

Whether a matter that would affect fundamental freedoms amounts to a matter of general public importance

 

Kenya Plantation and Agricultural Workers Union v Kenya Export Floriculture, Horticulture and allied Workers’ Union (Kefhau) Represented By Its Promoters David Benedict Omulama & 9 oythers [2018] eKLR
Civil Application No. Sup. 5 of 2017
Court of Appeal at Nairobi
M. Warsame, W. Ouko & K. Murgor, JJA
February 23, 2018
Reported by Kakai Toili

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Civil Practice and Procedure – appeals – appeals from the Court of Appeal to the Supreme Court - what types of appeals lay from the Court of Appeal to the Supreme Court – Constitution of Kenya, 2010, article 163(4) (b)
Civil Practice and Procedure – appeals – appeals from the Court of Appeal to the Supreme Court – certification of appeals from the Court of Appeal to the Supreme Court – criteria to certify appeals – public interest - principles to determine public interest - what were the principles to determine whether a matter was of general public importance.
Civil Practice and Procedure – appeals – appeals from the Court of Appeal to the Supreme Court – certification of appeals from the Court of Appeal to the Supreme Court – criteria to certify appeals – public interest - matters affecting fundamental freedoms - whether a matter that would affect fundamental freedoms amounted to a matter of general public importance - Constitution of Kenya, 2010, article 36(1) & 41
 

Brief Facts:
The Applicant filed the instant Application seeking certification and leave to appeal to the Supreme Court against the decision of the Court of Appeal sitting at Nairobi.

Issues:

  1. What types of appeals lay from the Court of Appeal to the Supreme Court
  2. What were the principles to determine whether a matter was of general public importance
  3. Whether a matter that would affect fundamental freedoms amounts to a matter of general public importance

Relevant Provisions of the Law: 
Constitution of Kenya, 2010 
Article 36 - Freedom of association
(1)Every person has the right to freedom of association, which includes the right to form, join or participate in the activities of an association of any kind.

Article 41 - Labour relations
(1)Every person has the right to fair labour practices.
(2)Every worker has the right—

(a)to fair remuneration;
(b)to reasonable working conditions;
(c)to form, join or participate in the activities and programmes of a trade union; and
(d)to go on strike.

(3)Every employer has the right—

(a)to form and join an employers organisation; and
(b)to participate in the activities and programmes of an employers organisation.

(4)Every trade union and every employers’ organisation has the right—

(a)to determine its own administration, programmes and activities;
(b)to organise; and
(c)to form and join a federation.

(5)Every trade union, employers’ organisation and employer has the right to engage in collective bargaining.

 

Article 163 - Supreme Court 
(4) Appeals shall lie from the Court of Appeal to the Supreme Court—

(a)as of right in any case involving the interpretation or application of this Constitution; and
(b)in any other case in which the Supreme Court, or the Court of Appeal, certifies that a matter of general public importance is involved, subject to clause

Held:

  1. It was not all intended appeals that lay from the Court of Appeal to the Supreme Court. Only those appeals that arose from cases involving the interpretation or application of the Constitution could be entertained by the Supreme Court. The only other instance when an appeal could lie to the Supreme Court was one contemplated under article 163(4) (b) of the Constitution, where it was certified that the appeal involved a matter of general public importance.
  2. A matter of general public importance warranting the exercise of the appellate jurisdiction would be a matter of law or fact, provided only that its impact and consequences were substantial, broad-based, transcending the litigation-interests of the parties and bearing upon the public interest. As the categories constituting the public interest were not close, the burden fell on the intending Appellant to demonstrate that the matter in question carried specific elements of real public interest and concern.
  3. The principles to determine whether a matter was of general public importance included;
    1. For a case to be certified as one involving a matter of general public importance, the intending Appellant had to satisfy the Court that the issue to be canvassed on appeal was one the determination of which transcended the circumstances of the particular case and had a significant bearing on the public interest.
    2. Where the matter in respect of which certification was sought raised a point of law, the intending Appellant had to demonstrate that such a point was a substantial one, the determination of which would have had a significant bearing on the public interest.
    3. Questions of law had to have arisen in the Court or Courts below and had to have been the subject of judicial determination.
    4. Where the Application for certification had been occasioned by a state of uncertainty in the law, arising from contradictory precedents, the Supreme Court could either resolve the uncertainty, as it could determine or refer the matter to the Court of Appeal for its determination.
    5. Mere apprehension of miscarriage of justice, a matter most apt for resolution in the lower superior courts was not a proper basis for granting certification for an appeal to the Supreme Court. The matter to be certified for a final appeal in the Supreme Court had to still fall within the terms of article 163(4) (b) of the Constitution.
    6. The intending Applicant had an obligation to identify and concisely set out the specific elements of general public importance which he or she attributed to the matter for which certification was sought.
    7. Determination of facts in contests between parties were not, by themselves, a basis for granting certification for an appeal before the Supreme Court.
  4. Prima facie, the issue of whether the Court of Appeal erred in law in finding and holding that the Industrial Court was right in applying the provisions of the Kenyan Constitution, 2010 to a case that was filed before its promulgation transcended the circumstances of the instant case and could have bearing on public interest.
  5. The Constitution of Kenya, 2010 under article 36(1) conferred the right to freedom of association by every person as a fundamental human right. Article 41 provided that every worker had the right to form, join or participate in the activities and programmes of a trade union of their choice. Consequently, because the instant case could affect those fundamental freedoms, it was of general public importance.
  6. From an analysis of the Notice of Motion and the Affidavit in support of the Application, the intending Appellant had met his obligation to identify and concisely set out the specific elements of general public importance. An Appeal to the Supreme Court within the terms of article 163 (4) of the Constitution had to be founded on cogent issues of constitutional controversy.
  7. The Applicant demonstrated that he intended to challenge the interpretation or application of any specific provision in the Constitution and demonstrated how the issues that were before the High Court and the Court of Appeal became matters within the ambit of article 163 (4) of the Constitution. A petitioner had to rationalize the transmutation of the issue in contention from an ordinary subject of leave to appeal to a meritorious theme involving the interpretation or application of the Constitution such that it became a matter as of right falling within the appellate jurisdiction of the Supreme Court. In the instant case the Applicant established that the issues in it could be issues of constitutional interpretation or application, for which under article 163(4) (a) of the Constitution no leave would have been required. The threshold in article 163(4) (b) had been met.
  8. The instant Application demonstrated to the existence of specific elements of general public importance which were attributed to the matter.

Application allowed, Appeal certified and leave to appeal to the Supreme Court granted .