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Court of AppealStruck OutCivil Appeal 15 of 2011· [2013] KECA 327 (KLR)

Director Kenya Medical Research Institute v Agnes Muthoni & 35 others [2013] KECA 327 (KLR)

Court of Appeal of Kenya
10 May 2013
RNR.N. NambuyePKP. Kihara KariukiSKS. ole Kantai
5,413 words in judgment
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The bottom line

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The Court of Appeal struck out KEMRI's appeal because Kenyan law then gave it no power to hear direct appeals from the Industrial Court.

What this practically means

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Executive summary

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This ruling of the Court of Appeal at Nairobi (Nambuye, Kihara Kariuki and ole Kantai, JJA) determines a preliminary objection to Civil Appeal 15 of 2011, an appeal by the Director, Kenya Medical Research Institute against an award of the Industrial Court (Mukunya J and two members) dated 13th May 2010 ordering unconditional reinstatement of 35 employees whose appointments were terminated on 17th December 2009. The respondents objected that the court lacked jurisdiction, since section 64 of the retired Constitution and section 3 of the Appellate Jurisdiction Act confine its appellate jurisdiction to appeals from the High Court, whereas the Industrial Court was created by section 11 of the Labour Institutions Act No. 12 of 2007 without the status of the High Court, even though section 27 of that Act purported to allow direct appeals. The court applied Mukisa Biscuit and Lillians v Caltex Oil, held the objection to be a proper preliminary objection and one it could itself determine, and concluded that section 27 conflicted with the retired Constitution, conferring a right of direct appeal that was void. It also held that section 22 of the Sixth Schedule to the 2010 Constitution did not preserve the appeal, the new Constitution being silent on retroactivity, and that section 12(6) of the Labour Institutions Act concerns enforcement only. The court declined to assume the High Court's original jurisdiction to strike down legislation, construing the supremacy clause instead. The appeal was struck out as incompetent, with costs to the objector, leaving the appellant with remedies of judicial review, a declaratory suit or a petition. The decision on the Industrial Court award itself was not disturbed.

Key legal issues

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01

Whether the objection was a proper preliminary objection

Holding

It was sustainable: it raised a pure point of law, was capable of disposing of the appeal, and the facts pleaded were not in dispute.

Reasoning

Applying Mukisa Biscuit, the court found the objection raised the pure point of law whether the Court of Appeal could entertain a direct appeal from the pre-2010 Industrial Court. It satisfied the finality ingredient because a finding of no jurisdiction would end the appeal, and the facts pleaded by the opposite party were undisputed.

p. 5
02

Whether the court could determine the challenge to its own jurisdiction

Holding

Yes; the challenged court is best placed to determine whether its jurisdiction is properly vested.

Reasoning

Relying on Owners of the Motor Vehicle Lillians v Caltex Oil, the court held jurisdiction issues must be decided forthwith on the evidence before the court, adding the application of the relevant law to those facts. The proper party to determine jurisdiction is the same court whose jurisdiction is challenged, so the court was competent to rule on the objection.

p. 5
03

Whether section 27 of the Labour Institutions Act validly conferred direct appellate jurisdiction on the Court of Appeal under the retired Constitution

Holding

No. Section 64 of the retired Constitution confined the court's appellate jurisdiction to appeals from the High Court, and under the statutory definition of High Court the Industrial Court was not a High Court. The purported right of direct appeal was void.

Reasoning

The court construed sections 3, 60 and 64 of the retired Constitution and section 3 of the Appellate Jurisdiction Act, concluding both limited appellate jurisdiction to appeals from the High Court. The Interpretation and General Provisions Act defines the High Court as the constitutional High Court, which did not include the Industrial Court. Section 12(6) of the Labour Institutions Act, equating Industrial Court decisions with High Court judgments, applies only to enforcement and not to appellate jurisdiction. The court declined to make a formal declaration of unconstitutionality, an original jurisdiction it lacks, but construed section 3 of the retired Constitution and held the right void.

p. 8
04

Whether section 22 of the Sixth Schedule to the 2010 Constitution preserved the appeal

Holding

No. The current Constitution is silent on retroactivity and its provisions on direct appeals cannot operate retrospectively; section 22 continues proceedings before courts, and the Industrial Court was not a court with the status of the High Court at the material time.

Reasoning

The court accepted both the decision appealed against and the desire to appeal predated the 2010 Constitution. Silence on retroactivity means non-existence. Section 22 speaks of judicial proceedings pending before courts, but the statutory definitions of court (in the Interpretation Act and Civil Procedure Act) did not embrace the Industrial Court as then constituted, which lacked High Court status.

p. 7

Legal principles established

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  • The limits of a court's jurisdiction are imposed by the statute, charter or commission constituting it, and a court exercising a jurisdiction it does not possess decides nothing; once jurisdiction is found wanting the court must down its tools.
  • Where a court's jurisdiction is challenged, the proper forum to determine the challenge is that same court, judging on the facts before it and the application of the relevant law to those facts.
  • A preliminary objection must raise a pure point of law argued on the assumption that all facts pleaded by the other side are correct, and cannot be raised where facts must be ascertained or discretion exercised.
  • As at the time this appeal was lodged, the Court of Appeal had no jurisdiction to receive direct appeals from the Industrial Court established under the Labour Institutions Act No. 12 of 2007, because section 64 of the retired Constitution confined its appellate jurisdiction to appeals from the High Court; the transitional provisions of the 2010 Constitution did not retrospectively cure this defect.

Court orders

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  1. 1.Upheld the preliminary objection dated 2nd February 2012 and filed on 11th February 2012
  2. 2.Held that the Court of Appeal has no jurisdiction to entertain the appeal
  3. 3.Struck out the appeal as incompetent with costs to the objector

Authorities

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Legislation

  • Constitution of Kenya (revised)section 3
  • Constitution of Kenya (revised)section 60
  • Constitution of Kenya (revised)section 64
  • Constitution of Kenya 2010Article 162 (1), (2)
  • Constitution of Kenya 2010Article 164 (3)
  • Constitution of Kenya 2010Sixth Schedule section 22
  • Appellate Jurisdiction Act (Cap 9)section 3
  • Labour Institutions Act No. 12 of 2007sections 11, 12, 27
  • Industrial Court Act No. 20 of 2011sections 4, 12, 17
  • Interpretation and General Provisions Act (Cap 2)section 3
  • Civil Procedure Act (Cap 21)
  • Trade Disputes Actsection 17

Cases cited (2)

  • Mukisa Biscuit Manufacturing Company Limited versus West end Distributors Limited
    (1969) EA 696
  • The Owners of the Motor Vehicle Lillians versus Caltex Oil (Kenya) Limited
    (1989) KLR 1
On appeal from
Industrial Court of Kenya at Nairobi
Industrial Case No. 37(N) of 2010
Jurisdiction invoked
Section 3 of the Appellate Jurisdiction Act (Cap 9) and section 64 of the retired Constitution; the court found these provisions did not vest jurisdiction to hear a direct appeal from the Industrial Court as constituted under the Labour Institutions Act No. 12 of 2007

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (10)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Director Kenya Medical Research Institute v Agnes Muthoni & 35 others [2013] KECA 327 (KLR)", Case Analysis (2013). Civil Appeal 15 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/327/eng@2013-05-10

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.