Joseph Mchere Aoko v Civicon Limited [2015] KECA 308 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that appeals from the old Industrial Court go to the Employment and Labour Relations Court, not the Court of Appeal.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Court of Appeal has jurisdiction to entertain an appeal from the former Industrial Court established under section 11 of the Labour Institutions Act No. 12 of 2007 before the Constitution 2010
- 2.Which court under the Constitution 2010 has appellate jurisdiction over decisions of the former Industrial Court
Key legal issues
#Whether the Court of Appeal has jurisdiction over appeals from the former Industrial Court under the old constitutional order
It does not. Section 64 of the old Constitution restricted appeals to the Court of Appeal to matters emanating from the High Court; the former Industrial Court was a subordinate court; and section 27 of the Labour Institutions Act, being subordinate to the retired Constitution, could not confer such a right.
The former Industrial Court was a statutory creation, not a constitutional court. The old Constitution defined it as a subordinate court amenable to High Court supervision. Section 27 of the Labour Institutions Act purporting to confer a direct right of appeal to the Court of Appeal conflicted with sections 64 and 65 of the retired Constitution, and by section 3 of that Constitution the constitutional provisions prevailed, rendering the statutory right of appeal void and incapable of being enjoyed.
Whether the Court of Appeal can hear appeals from decisions of the former Industrial Court delivered after the promulgation of the Constitution 2010
No. The right of appeal accrues from the constitutional and statutory framework, not from the date of delivery of the award; and the Constitution 2010 did not envisage appeals to the Court of Appeal from decisions of courts composed of a judge and two lay members.
The court rejected the argument that the post-2010 date of the award conferred a right of appeal, holding that jurisdiction cannot be conferred by 'the administrative dictates of dates and times'. Further, Article 164(3) appeals must be from courts presided over by judges appointed under Article 166(2); the former Industrial Court's lay members did not qualify, so its decisions could not be the subject of an Article 164(3) appeal.
Which court under the Constitution 2010 should hear appeals from decisions of the former Industrial Court
The Employment and Labour Relations Court, as the 'corresponding court' under section 22 of the Sixth Schedule, has appellate jurisdiction over such decisions; the High Court is divested by Article 165(5).
Section 22 of the Sixth Schedule requires pending judicial proceedings to continue before the same court or a corresponding court. The High Court cannot hear such appeals because Article 165(5) ousts its jurisdiction over matters reserved to the Article 162(2) courts. The Employment and Labour Relations Court, established under Article 162(2)(a) with the same status as the High Court and vested with exclusive and appellate jurisdiction by section 12 of the Industrial Court Act 2011, is the corresponding court.
Legal principles established
#- The Court of Appeal has no jurisdiction to entertain appeals from the former Industrial Court established under section 11 of the Labour Institutions Act No. 12 of 2007; such appeals lie to the Employment and Labour Relations Court.
- Where a statutory right of appeal conflicts with the retired Constitution, the constitutional provisions prevail.
- A right of appeal is a jurisdictional question that can only be founded on the Constitution and statute, not inferred from dates of delivery of a judgment.
- The Employment and Labour Relations Court has exclusive jurisdiction over all disputes relating to employment and labour relations.
Court orders
#- 1.The application by notice of motion dated and filed on 15th February 2012 is allowed
- 2.A declaration that the Court of Appeal has no jurisdiction to entertain the Notice of Appeal dated 5th January 2012, which stands struck out
- 3.Each party shall bear his/her own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Industrial Court of Kenya at Nairobi
- Industrial Cause No. 716(N) of 2009
- Jurisdiction invoked
- Article 164(3) of the Constitution; Rules 42, 43 and 84 of the Court of Appeal Rules (application to strike out a notice of appeal)
Relief refused
#The respondent's assertion of a right of appeal to the Court of Appeal from the former Industrial Court
The right of appeal was not conferred by the Constitution or statute; section 27 of the Labour Institutions Act conflicted with sections 64 and 65 of the retired Constitution which prevailed
Appeal to the High Court from the former Industrial Court
The High Court has been divested of such appellate jurisdiction by Article 165(5) of the Constitution 2010
Costs
Given the peculiar circumstances of the case, we order that each party shall bear his/her own costs.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Consequently, and for these reasons stated, we are constrained to allow as we hereby do the application by the notice of motion dated and filed in this Court on 15 th February, 2012 and hold that we have no jurisdiction to entertain the Notice of Appeal dated 5th January, 2012.
Given the peculiar circumstances of the case, we order that each party shall bear his/her own costs.
We therefore hold and state for avoidance of doubt that the Labor and Employment Court is a competent court with both “original jurisdiction” in labour and employment disputes arising under the new Constitution 2010 and an "appellate jurisdiction" for labor and employment disputes arising from the decisions of the former Industrial Court established under the retired Constitution.
A Court’s jurisdiction flows from either the Constitution or legislation or both. Such a Court may not arrogate to itself jurisdiction through the craft of interpretation, or by way of endeavours to discern or interpret the intentions of Parliament, where the wording of legislation is clear and there is no ambiguity.
It is well settled law that a right of appeal can only be founded on a statute and that any party who seeks to avail himself of the right must strictly comply with the conditions prescribed by the statute.
Issues in the judgment
#The respondent's party designation is internally inconsistent: counsel Mr. Mugambi is described as appearing for 'the appellant/respondent' although the respondent is Civicon Limited, and the affiant of the replying affidavit is given as 'Mr. Alfred Ouma', an officer of the respondent, while the name of the respondent's instructing counsel is Mr. Muthama.
The application is described in the motion as 'dated 16th June, 2012' but later the court allows 'the application by the notice of motion dated and filed in this Court on 15 th February, 2012'.
The Sixth Schedule transitional provision on pending proceedings is referred to as 'section 22' and then as 'section 12' within the same passage.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joseph Mchere Aoko v Civicon Limited [2015] KECA 308 (KLR)", Case Analysis (2015). Civil Application No. NAI. 43 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/308/eng@2015-10-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.