Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealPartially AllowedCivil Appeal No. 66 of 2017· [2018] KECA 506 (KLR)

Industrial and Commercial Development Corporation v Industrial Court (as Estabished Under the Labour Institutions Act No. 12 of 2007) & 2 others [2018] KECA 506 (KLR)

Court of Appeal
22 June 2018
3,774 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal ruled that the six-month clock for judicial review of a tribunal decision starts when the tribunal actually decides its own jurisdiction, not earlier.

What this practically means

#

Executive summary

#
The Court of Appeal allowed ICDC's appeal against the ELRC's dismissal of its judicial review application seeking certiorari to quash an award in favour of James Machuka, a Receiver/Manager appointed under a debenture. The central question was when time began to run for filing the judicial review application under section 9(3) of the Law Reform Act and order 53 rule 2 of the Civil Procedure Rules. The ELRC had held that the Tribunal's ruling of 2nd June 2011 on a preliminary objection both determined that an employer-employee relationship existed and founded jurisdiction, so that the application filed on 29th August 2012 was out of time. The Court of Appeal reviewed the ruling and found it made no specific pronouncement on the relationship or jurisdiction; the Tribunal dismissed the objection so it could examine the merits. It was in the award of 11th July 2012 that the Tribunal found James to be an employee under the Labour Institutions Act. Consequently, time ran from the award, the application for leave was filed within six months, and the learned judge wrongly set aside the leave. Noting that the ELRC never determined whether an employer-employee relationship legally existed, the Court set aside the ELRC's judgment and orders of 5th December 2014 and remitted the matter to the ELRC for determination of that question on a priority basis by any judge other than Nduma, J. The appellant received the costs of the appeal. The court reiterated the settled restraint on appellate interference with judicial discretion.

Key legal issues

#
01

Whether the Tribunal's ruling of 2nd June 2011 constituted a determination on jurisdiction

Holding

The ruling did not determine that an employer-employee relationship existed or pronounce on jurisdiction; the ELRC judge misdirected himself in holding otherwise.

Reasoning

Reviewing the ruling, the court found the Tribunal was satisfied only that a working relationship existed but was uncertain of its extent, holding that this could only be determined after hearing the merits. The Tribunal made no specific pronouncement on the existence of an employment relationship or on its jurisdiction. It was only in the award of 11th July 2012 that the Tribunal found James to be an employee under the Labour Institutions Act, so the jurisdictional determination was made then, not on 2nd June 2011.

p. 4
02

Whether the judicial review application was time barred

Holding

The application for leave was filed within the statutory six-month period measured from the award of 11th July 2012, and the learned judge wrongly set aside the leave granted.

Reasoning

Since the decision on jurisdiction was made on 11th July 2012 and the application for leave was filed on 29th August 2012, it was lodged one and a half months after the award, in compliance with section 9(3) of the Law Reform Act and order 53 rule 2 of the Civil Procedure Rules. The ELRC had erred in starting time from the 2nd June 2011 ruling.

p. 5
03

Whether an employer-employee relationship legally existed between the appellant and James

Holding

The court declined to determine this itself, remitting it to the ELRC since the learned judge had not pronounced himself on it.

Reasoning

Having concluded the application was time barred, the ELRC judge never addressed whether an employment relationship existed. The Court of Appeal considered the appellant entitled to such a determination by the ELRC and remitted the matter for hearing on a priority basis by any judge other than Nduma, J.

p. 5

Legal principles established

#
  • Where a tribunal's ruling on a preliminary objection does not pronounce itself on the existence of an employer-employee relationship or on its own jurisdiction, time for filing a judicial review application challenging that decision does not begin to run from that ruling; where the jurisdictional determination is first made in the tribunal's award, time runs from the award, and an application for leave to file judicial review filed within six months of the award is not time barred under section 9(3) of the Law Reform Act and order 53 rule 2 of the Civil Procedure Rules.
  • An appellate court should not interfere with the exercise of a judge's discretion unless the judge misdirected himself in some matter and arrived at a wrong decision, or it is manifest from the case as a whole that the judge was clearly wrong in the exercise of his discretion resulting in misjustice.

Court orders

#
  1. 1.The appeal is allowed
  2. 2.The judgment and orders of the ELRC dated 5th December 2014 are set aside
  3. 3.The suit is remitted back to the ELRC for a determination of the question of whether an employer and employee relationship legally existed between the appellant and James Machuka
  4. 4.The remitted matter to be heard on a priority basis by any judge of that court, other than Nduma, J.
  5. 5.The appellant shall have the costs of the appeal

Authorities

#

Legislation

  • Labour Institutions ActNo. 12 of 2007; sections 3, 12, 15, 27
  • Employment Act2007; section 87(1); Part XII
  • Companies ActChapter 486 (now repealed)
  • Law Reform ActCap 26, section 9(3)
  • Civil Procedure RulesOrder 53 rule 2
  • Industrial Court Rules2010, rule 32
  • Industrial Institution Act2007, section 12

Cases cited (1)

  • Maina vs Mugiria
    (1983) KLR 79
On appeal from
Employment and Labour Relations Court (formerly the Industrial Court), Milimani, Nairobi
Industrial Court Miscellaneous Application No. 16 of 2012
Jurisdiction invoked
First appeal to the Court of Appeal from the Employment and Labour Relations Court pursuant to the statutory appeal framework (appeal against the exercise of discretion; no specific constitutional provision invoked in the judgment)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (1)

#

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

Cite this brief

#

Cite this brief

Caselaw, "Industrial and Commercial Development Corporation v Industrial Court (as Estabished Under the Labour Institutions Act No. 12 of 2007) & 2 others [2018] KECA 506 (KLR)", Case Analysis (2018). Civil Appeal No. 66 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/506/eng@2018-06-22

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