Heritage Insurance Company Limited v Christopher Onyango & 23 others [2020] KECA 580 (KLR)

IN THE COURT OF APPEAL

AT NAIROBI

(CORAM: OUKO, (P), WARSAME & SICHALE, JJ.A)

CIVIL APPLICATION NO. SUP. 11 OF 2018

BETWEEN

HERITAGE INSURANCE COMPANY LIMITED...........APPELLANT

AND

CHRISTOPHER ONYANGO & 23 OTHERS..............RESPONDENTS

(Being an application by the respondents for a Certificate that a matter of general public importance is involved pursuant to Article 163 (4) of the Constitution of Kenya

in

Civil Appeal No. 114 of 2016)

************************

RULING OF THE COURT

In a judgment of the Employment and Labour Relations Court at Nairobi (Monica Mbaru, J.) delivered on 7th April, 2016 awarded compensation to the 24 appellants, the former employees of the respondent whose services were terminated on account of redundancy as a result of review of structures and implementation of the ICT systems. They were awarded various sums of money in respect of salaries for the number of years each one of them had worked, compensation, damages for discrimination, notice and severance pay. In granting the award, the Judge took into account the respondent’s two human resource handbooks issued in 1994 and a subsequent one of 2013. The former prescribed 30 days’ redundancy notice while the latter reduced the period from 30 days to 15 days. The learned Judge was of the view that the appellants’ employment fell within the 2013 handbook. Basing her decision on this fact, she declared, among other things that;

“(a) the redundancy notice issued to the claimants on 30th April 2015 was unlawful;

(b) the termination of employment of the claimants on 30th April 2015 was unfair;

(c) the unlawful acts of the respondent of 30th April 2015 of issuing redundancy notice and terminating the claimant's employments amounted to discrimination against the claimants herein”.

The respondent challenged this determination before this Court, arguing, in the main that it was erroneous for the learned Judge to have ignored the evidence proving the reasons for redundancy; for finding that the 2013 handbook manual was the one that governed the respondents' terms of service and not the one of 1994; for awarding Shs. 500,000 as damages to each of the appellants without proof of the Article of the Constitution which had been violated in support of the claim of discrimination.

After weighing the arguments presented, this Court, (G.B.M Kariuki, Sichale & Kantai, JJA.) agreeing with the respondent, allowed the appeal finding on the preponderance of evidence that the Handbook in force at the time in question was that issued in July, 2013; that the appellants led no evidence to establish violation of any of their constitutional rights as infact discrimination was not proved; that there was nothing “to prove that the redundancy was fake”; that the applicants were paid in lieu of notice; and that the termination, being in accordance with the terms of employment was not wrongful.

Now, by their motion brought pursuant to Article 163(4) of the Constitution, sections 3, 15(1),16 and 24(1) of the Supreme Court Act and Rule 24 of the Supreme Court Rule, 2012, the applicant’s seek our leave to challenge the foregoing determination of this Court to the Supreme Court on the ground that the intended appeal raises matters of general public importance.

We have considered arguments on whether, indeed, there are matters of general public importance that ought to go to the Supreme Court for its input. In determining this question, we have been guided by now well-established principles enunciated by both this Court and the Supreme Court, some of which were presented to us by the parties.

In Hermanus Phillipus Steyn vs. Giovanni Gnecchi-Ruscone, Supreme Court Application No. 4 of 2012 the Supreme Court gave the test for granting leave to appeal as follows:

“i. For a case to be certified as one involving a matter of general public importance, the intending appellant must satisfy the Court that the issue to be canvassed on appeal is one the determination of which transcends the circumstances of the particular case, and has a significant bearing on the public interest;

ii. where the matter in respect of which certification is sought raises a point of law, the intending appellant must demonstrate that such a point is a substantial one, the determination of which will have a significant bearing on the public interest

iii. …..

iv.  where the application for certification has been occasioned by a state of uncertainty in the law, arising from contradictory precedents, the Supreme Court may either resolve the uncertainty, as it may determine, or refer the matter to the Court of Appealfor its determination;

v……

vi.  the intending applicant has an obligation to identify and concisely set out the specific elements of general public importance which he or she attributes to the matter for which certification is sought;

vii. determination of facts in contests between parties are not, by themselves, a basis for granting certification for an appeal before the Supreme Court.”

We are unable to see how the issues determined by this Court in its decision of 20th December, 2017 would raise matters of general public importance. This was purely a matter of labour dispute between an employer and its employees, specifically on the question of redundancy. It was purely on the construction of section 40of the Employment Act to determine whether the respondent had complied with the conditions set out in that section. In its determination, the Court also considered the conclusions by the learned Judge regarding the application of the handbook for employees, with the key question being whether the period of notice is that provided in the 1994 handbook or the one of 2013.

With respect, that is not a matter that transcends the circumstances of the parties herein. The applicants have also not demonstrated that the point they wish to argue in the Supreme Court is a substantial one, whose determination will have a significant bearing on the public interest. Though it is mentioned in passing, the applicants have identified the decisions that have caused the state of uncertainty in the law.

Finally, and of significance, we have not been shown the specific elements of general public importance which the applicants attribute to the matter for which certification is sought.

In our considered view, all this Court and the court below did was to determine contested facts between the applicants and the respondent, which, by itself, cannot be a basis for granting certification to appeal to the Supreme Court. This application, for these reasons must fail. It is dismissed with costs.

Dated and delivered at Nairobi this 19thday of June, 2020.

W. OUKO, (P)

.....................................

JUDGE OF APPEAL

M. WARSAME

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JUDGE OF APPEAL

F. SICHALE

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JUDGE OF APPEAL

I certify that this is a true copy of the original.

Signed

DEPUTY REGISTRAR