African Safari Club Limited v Transport & Allied Workers Union
The bottom line
#Kenya's Court of Appeal confirmed employers can appeal Industrial Court decisions directly, and missing deadlines can be forgiven when appeal procedures are unclear.
What this practically means
#Executive summary
#Key legal issues
#Whether the absence of procedural rules for appeals from the Industrial Court should defeat an application for extension of time
The absence of clear rules should not deny an intending appellant an extension of time; the explanation for delay founded on that absence was plausible and the court had jurisdiction to extend time under rule 4
The court noted that no rules governing appeals from the Industrial Court to the Court of Appeal had been promulgated, since the Court of Appeal Rules were made under the Appellate Jurisdiction Act which expressly deals with appeals from the High Court. Given that appeals from the Industrial Court lie directly to the Court of Appeal under the Constitution and the Industrial Court Act, the resulting uncertainty as to where to lodge a notice of appeal was accepted as a plausible explanation for the delay and did not bar the discretionary relief.
Where should a notice of appeal from the Industrial Court be lodged under rule 75(1)
Since Article 162(2)(a) designates the Industrial Court as a superior court of record, the registrar of the Industrial Court qualifies as the registrar of the superior court for purposes of rule 75(1)
Before the 2010 Constitution only the High Court was generally referred to as the superior court. Article 162(2)(a) now includes the Industrial Court as one of the superior courts of record, so a notice of appeal may be lodged with the registrar of the Industrial Court.
Whether delegating the filing of a notice of appeal to a clerk was improper
It is not objectionable for an advocate to send a clerk to file a document in any court unless the law expressly states otherwise
The respondent blamed the applicant's advocates for delegating filing to a clerk, contending filing is the advocate's responsibility. The court rejected that objection as a basis for denying the extension, holding that clerks may properly be used for filing documents absent contrary law.
Whether the court could extend time for the memorandum and record of appeal absent a specific prayer
The court extended time for the memorandum and record of appeal pursuant to sections 3A and 3B of the Appellate Jurisdiction Act under the general prayer for further orders, since an extension limited to the notice of appeal would serve no purpose
The time for filing the memorandum and record of appeal had also expired and the application contained no specific prayer for its extension. Because extending time only for the notice of appeal would be futile, the court agonized over the question and resolved to use the general prayer, invoking its inherent jurisdiction under sections 3A and 3B of the Appellate Jurisdiction Act.
Legal principles established
#- Appeals from the Industrial Court lie directly to the Court of Appeal under the Constitution of Kenya, 2010 and section 17 of the Industrial Court Act, 2011, notwithstanding the absence of promulgated rules
- The Court of Appeal has jurisdiction under rule 4 of the Court of Appeal Rules to extend time for filing a notice of appeal against a decision of the Industrial Court
- A reference in rule 75(1) to the registrar of the superior court extends to the registrar of the Industrial Court, which is a superior court of record under Article 162(2)(a)
- There is nothing objectionable in an advocate sending a clerk to file a document in court unless the law expressly provides otherwise
Court orders
#- 1.Extension of 10 days from the date of the order within which to lodge and serve a Notice of Appeal
- 2.Further extension of 30 days within which to lodge and serve a memorandum and record of appeal
- 3.Applicant to bear the respondent's costs of the motion dated 3rd March, 2011
- On appeal from
- Industrial Court
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules, read with sections 3A and 3B of the Appellate Jurisdiction Act (Cap 9) and section 17 of the Industrial Court Act, 2011; Article 162(2)(a) of the Constitution of Kenya, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "African Safari Club Limited v Transport & Allied Workers Union", Case Analysis (2011). Notice of motion dated 3rd March, 2011 (Civil Application). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2011/11/eng@2011-12-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.