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)
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
#Key legal issues
#Whether the Tribunal's ruling of 2nd June 2011 constituted a determination on jurisdiction
The ruling did not determine that an employer-employee relationship existed or pronounce on jurisdiction; the ELRC judge misdirected himself in holding otherwise.
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.
Whether the judicial review application was time barred
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.
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.
Whether an employer-employee relationship legally existed between the appellant and James
The court declined to determine this itself, remitting it to the ELRC since the learned judge had not pronounced himself on it.
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.
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.The appeal is allowed
- 2.The judgment and orders of the ELRC dated 5th December 2014 are set aside
- 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.The remitted matter to be heard on a priority basis by any judge of that court, other than Nduma, J.
- 5.The appellant shall have the costs of the appeal
- 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.