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Court of AppealStruck OutCivil Appeal (Application) No. 105 of 2013· [2015] KECA 466 (KLR)

Maureen Odero v Kenya Pipeline Company Limited [2015] KECA 466 (KLR)

Court of Appeal of Kenya
31 July 2015
1,888 words in judgment
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The bottom line

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The Court of Appeal struck out an appeal against a Kenyan Industrial Court award, ruling it has no jurisdiction to hear appeals from that tribunal.

What this practically means

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Executive summary

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The applicant moved the Court of Appeal at Nairobi to strike out the respondent's record of appeal in Civil Appeal No. 105 of 2013, which sought to challenge an award of the Industrial Court of Kenya at Nairobi in Industrial Court Cause No. 422 of 2011. The application raised four grounds: lack of jurisdiction over appeals from the Industrial Court constituted as a tribunal under the Labour Institutions Act No. 12 of 2007; the record having been filed out of time without leave; the record lacking a certified copy of the decree; and abuse of process given a pending constitutional petition seeking to nullify the award. The respondent opposed, relying on a supplementary record of appeal filed under Rule 92 which contained the certificate of delay and certified decree. The court held that the decisive issue was jurisdiction. Following its own earlier decision in The Director Kenya Medical Research Institute v Agnes Muthoni & 35 Others, it reaffirmed that its appellate jurisdiction under Section 3 of the Appellate Jurisdiction Act and the retired Constitution extends only to appeals from the High Court, and does not include the Industrial Court as a statutory tribunal. It rejected the argument that the post-2010-Constitution date of the award conferred jurisdiction, holding that jurisdiction is conferred by law and must exist ab initio; it is not retrospective. The court further found the supplementary record was filed more than fifteen days after the record of appeal without the leave required by Rule 88 and was therefore improperly on record, leaving the record defective. Allowing the application, the court struck out the record of appeal for want of jurisdiction and awarded costs to the applicant. This ruling binds lower courts on the limits of the Court of Appeal's jurisdiction over appeals from the pre-2010 Industrial Court tribunal.

Key legal issues

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01

Jurisdiction of the Court of Appeal over appeals from the Industrial Court constituted as a tribunal under the Labour Institutions Act, 2007

Holding

The Court of Appeal has no jurisdiction to hear such appeals; its appellate jurisdiction extends only to decisions of the High Court established by the Constitution

Reasoning

Following its earlier decision in The Director Kenya Medical Research Institute v Agnes Muthoni & 35 Others, the court reasoned that Section 3 of the Appellate Jurisdiction Act and Section 64 of the retired Constitution limit its appellate jurisdiction to appeals from the High Court, and the definition of High Court whose decisions are appealable does not include the Industrial Court constituted as a tribunal. The court declared that jurisdiction is everything and without it a court must lay down its tools.

p. 3
02

Whether the post-2010-Constitution date of the award (25th May 2012) conferred jurisdiction on the Court of Appeal

Holding

No - jurisdiction is not retrospective and does not arise from the date of the award; the court that heard the matter was the Industrial Court under the 2007 Act, not the Employment and Labour Relations Court under Article 162(2)(a) and (3)

Reasoning

The appellant argued that because the award was delivered after the promulgation of the 2010 Constitution, Article 164(3) gave the Court of Appeal jurisdiction. The court rejected this, holding that jurisdiction must exist ab initio at the time of hearing the case and is conferred by law, not by the date of the award. Since the trial court was the Industrial Court as constituted under the Labour Institutions Act, the appeal was incompetent regardless of the award date.

p. 3
03

Competence of the record of appeal and the effect of an irregular supplementary record of appeal

Holding

The supplementary record filed more than 15 days after the record of appeal, without leave, was improperly on record, leaving the record of appeal defective

Reasoning

The court found it undisputed that the supplementary record was filed on 11th September 2013, more than fifteen days after the record of appeal, without leave. Rule 88 permits inclusion of omitted documents without leave only within fifteen days, and thereafter only with leave of the deputy registrar. Although mindful of Odera v Machira that omission of a document is not automatically fatal, the fundamental jurisdictional defect disposed of the appeal in any event.

p. 3

Legal principles established

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  • The Court of Appeal has no jurisdiction to entertain appeals from the Industrial Court as established under the Labour Institutions Act No. 12 of 2007
  • Jurisdiction is conferred by law at the time of hearing and is not retrospective; it is not conferred by the date of the award or determination
  • A supplementary record of appeal filed beyond the 15 days allowed under Rule 88 cannot be filed without leave; a supplementary record filed without leave is improperly on record

Court orders

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  1. 1.The Notice of Motion dated 26th June 2013 is allowed
  2. 2.The record of appeal lodged as Civil Appeal No. 105 of 2013 is struck out for want of jurisdiction
  3. 3.Costs of the application are awarded to the applicant

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 162(2)(a) and (3)
  • Constitution of Kenya, 2010Article 164(3)
  • The retired ConstitutionSection 64
  • Labour Institutions ActNo. 12 of 2007
  • Appellate Jurisdiction ActSection 3
  • Interpretation and General Provisions ActSection 3 (Cap 2)
  • Court of Appeal RulesRules 81(1), 81(2), 82(1), 82(2), 88, 92

Cases cited (4)

  • Owners of the Motor Vessel "Lillian S' -v- Caltex Oil (K) Limited
    [1989] KLR 1
  • The Director Kenya Medical Research Institute -v- Agnes Muthoni & 35 Others
    Civil Appeal No. 15 of 2011
  • Kali Security Co. Ltd -v- Mureithi
    (2005) KLR 91
  • Odera t/a Odera & Associates -v- Machira t/a Machira & Co. Advocates
    (2000) KLR 254
On appeal from
Industrial Court of Kenya at Nairobi (a tribunal under the Labour Institutions Act, 2007)
IND. Court Cause No. 422 of 2011
Jurisdiction invoked
Appellate jurisdiction of the Court of Appeal under Article 164(3) of the Constitution of Kenya, 2010, read with the Appellate Jurisdiction Act; the court held this jurisdiction did not extend to the Industrial Court as constituted under the Labour Institutions Act, 2007

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Maureen Odero v Kenya Pipeline Company Limited [2015] KECA 466 (KLR)", Case Analysis (2015). Civil Appeal (Application) No. 105 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/466/eng@2015-07-31

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