THE MORIBUND RIGHT OF APPEAL FROM THE INDUSTRIAL COURT TO THE COURT OF APPEAL UNDER THE LABOUR INSTITUTIONS ACT, 2007

Following the repeal of the Employment Act, Cap. 226 and the Trade Disputes Act, Cap. 234 several new pieces of legislation being inter alia the Labour Institutions Act, Act No. 12 of 2007came into operation. The Labour Institutions Act divests from the civil courts (read Resident Magistrate’s Court and the High Court) the substantive jurisdiction to hear and determine claims, complaints or any infringement of the provisions of statutes where the Industrial Court is vested with legal authority and in matters arising at common law between an employer and employee in the course of employment, between and employee or employer’s organization and a trade union or between a trade union, an employer’s organization or a federation.

One of the salient developments introduced by the Labour Institutions Act, 2007 is a right to appeal to the Court of Appeal from any judgment, award or order of the Industrial Court only on matters of law. Additionally the Industrial Court may review its own orders, awards or judgments. A right of appeal has apparently been created by statute. A legal impasse that results from this scenario is that there are presently no rules made under the act regulating the procedures of the Industrial Court and more importantly the process of appeal to the Court of Appeal.

Basically the Court of Appeal is established under the constitution as a superior court of record which shall have such jurisdiction and powers in relation to appeal from the High Court as may be conferred on it by law(emphasis applied). The same is reiterated by section 3 of the Appellate Jurisdiction Act, Cap. 9 that the Court of Appeal shall have jurisdiction to hear and determine appeals from the High Court in cases in which an appeal lies to the Court of Appeal under any law.

There is apparently a lack of legal synergy between the Labour Institutions Act, 2007 and the Appellate Jurisdiction Act and more fundamentally with the Constitution of Kenya with regard to the Jurisdiction of the Court of Appeal to hear and determine appeals from the Industrial Court.

The trite legal position is that under the Constitution and the Appellate Jurisdiction Act the Court of Appeal shall only exercise jurisdiction in relation to appeals from the High Court. There seems to have been a critical omission by parliament to make the appropriate amendments to the Constitution and the Appellate Jurisdiction Act to legally take cognizance of the right of appeal from the Industrial Court provided for under the Labour Institutions Act. Without those amendments the right of appeal from the award is ‘moribund’ and cannot at present be invoked as an appeal there from filed in the Court of Appeal stands to be struck out on a technical objection with regard to want of jurisdiction. The fate of such an appeal may be introspectively gleaned from the legal proposition in the cases of Rafiki Enterprises Limited-vs-Kingsway Tyres & Automart Limited (Civil Application No. NAI 375 of 1996) and the recent decision in Jasbir Sing Rai & others-vs-Tarlochan Singh Rai & others (Civil Application No. NAI 96 of 2004).

Owing to the influx of employment cases being filed at the Industrial Court the gauntlet is thrown back to the legislature to urgently amass a two third majority for the constitutional amendment that will actualize the right of appeal granted under the Labour Institutions Act and a simple majority to facilitate reception of that right of appeal from the Industrial Court under the Appellate Jurisdiction Act.

Comments, inquiries, commendation or criticism are welcome and the same shall be appreciated.

Willis E. Werimo©

Advocate

2009