Onesmus Musyoki Kilonzo v Nation Media Group Limited (Cause 2355 of 2012) [2014] KEIC 117 (KLR) (25 June 2014) (Ruling)

Onesmus Musyoki Kilonzo v Nation Media Group Limited (Cause 2355 of 2012) [2014] KEIC 117 (KLR) (25 June 2014) (Ruling) Onesmus Musyoki Kilonzo v Nation Media Group Limited [2014] eKLR Neutral citation: [2014] KEIC 117 (KLR) Republic of Kenya In the Industrial Court at Nairobi Cause 2355 of 2012 Nzioki wa Makau, J June 25, 2014 Between Onesmus Musyoki Kilonzo Claimant and Nation Media Group Limited Respondent Ruling 1.The Respondent/Applicant’s Notice of Motion Application dated26th May 2014 supported by the Affidavit of Sekou Owino Headof Legal for the Respondent/Applicant applies to stay the ordersof this Court as the Respondent/Applicant seeks to appeal adecision of this Court that held that Section 45(3) of theEmployment Act 2007 was unconstitutional on the strength ofSamuel Momanyi v SDV Transami and Anor [2012] eKLR. 2.In a ruling I delivered on 24th March 2014 I dismissed theRespondent/Applicant’s preliminary objection to the Claimant’ssuit. The objection was predicated on Section 45(3) and it wasthe Respondent/Applicant’s contention that Section 45(3) barredthe Claimant from bringing the action. I dismissed thepreliminary objection on the basis that Section 45(3) is no longera part of the statutes having been held as unconstitutional bythe High Court and it is that dismissal which has precipitated thepresent application for stay pending appeal. 3.Miss Ngige for the Respondent/Applicant submitted that theintended appeal was arguable with good prospects of successand that if the Court does not grant the orders sought theintended appeal, if successful will be rendered nugatory. 4.The Claimant/Respondent was opposed and filed a ReplyingAffidavit sworn by the Claimant on 3rd June 2014. In his ReplyingAffidavit he deposed that he had been advised by his advocateson record that it was imperative that the Respondent/Applicantdemonstrates that it had an arguable appeal with chances ofsuccess.5. The factors to be considered before grant of stay pending appealare well settled. They are aptly captured in the case of Halai &Another v Thorton & Turpin (1963) Ltd [1990] KLR365 where the Court of Appeal Gicheru JA, Chesoni & Cockar Ag.JA (as they all then were) held that:-The High Court’s discretion to order a stay of execution of itsorder or decree is fettered by three conditions. Firstly theapplicant must establish a sufficient cause, secondly the courtmust be satisfied that substantial loss would ensue from arefusal to grant stay and thirdly the applicant must furnishsecurity. The application must of course be made withoutunreasonable delay.In addition the issue of whether the intended appeal will berendered nugatory is critical as was held in the case of HassanGuyo Wakalo v Straman East Africa Ltd [2013] eKLR as follows:-“In addition, the Applicant must prove that if the orders soughtare not granted and his Appeal eventually succeeds, then thesame shall have been rendered nugatory. These twin principlesgo hand in hand and failure to prove one dislodges the other” 6.The Respondent/Applicant has sought to appeal against adecision that upheld the High Court’s declaration of a section ofan act of Parliament as unconstitutional. 7.Under Article 1 of the Constitution, the supremacy of theConstitution is recognized. The High Court has power under thelaw to declare Acts of Parliament unconstitutional. The rationalefor this is obvious. Only the judiciary is clothed with the power tointerpret statute and render decisions on that. Article 165 isamply clear. The jurisprudence in this area flows back to the1800’s in the case of Marbury v Madison 5 U.S. 137 (1803)which held that the Supreme Court of the United States had theauthority to review acts of Congress and determine whetherthey are unconstitutional and therefore void. 8.In developing the law on judicial review, an American juristAlexander Hamilton, who was one of the most influentialinterpreters and promoters of the Constitution of the UnitedStates, asserted that under the Constitution of the United States,the federal courts would have not just the power, but the duty,to examine the constitutionality of statutes and stated that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keepthe latter within the limits assigned to their authority. Theinterpretation of the laws is the proper and peculiar province ofthe courts. A constitution is, in fact, and must be regarded bythe judges as, a fundamental law. It, therefore, belongs to themto ascertain its meaning, as well as the meaning of anyparticular act proceeding from the legislative body. If thereshould happen to be an irreconcilable variance between the two,that which has the superior obligation and validity ought, ofcourse, to be preferred; or, in other words, the Constitutionought to be preferred to the statute, the intention of the peopleto the intention of their agents. 9.The intended appeal by the Respondent/Applicant is notarguable and has absolutely no chance of success. Article 2(4) ofthe Constitution provides that any law including customary lawthat is inconsistent with the Constitution is void to the extent ofthe inconsistency. Section 45(3) was found to be inconsistentwith the Constitution of Kenya by the High Court. This waspursuant to the provisions of Article 165(3)(d)(i) and I upheld thefinding. It is a fallacious argument to even suggest that the HighCourt has no jurisdiction to declare an act unconstitutional. Iwish to refer counsel for the Respondent/Applicant to the case ofSamuel Kamau Macharia & Another v Kenya CommercialBank Limited & 2 Others [2012] eKLR.Page 4 of 5 10.When an act of Parliament is in conflict with the Constitution, itis my duty and obligation to uphold the Constitution because it isthe supreme law of the land. The Respondent/Applicant’s Noticeof Motion Application woefully fails to meet any of the thresholdsfor grant of stay pending appeal and is dismissed with costswhich shall be paid personally by the advocates for theRespondent.Orders accordingly. **DATED AND DELIVERED AT NAIROBI THIS 25 TH DAY OF JUNE 2014****NZIOKI WA MAKAU****JUDGE**