Kenyatta University v University Academic Staff Union & another [2019] KECA 908 (KLR)
The bottom line
#The Court of Appeal confirmed it cannot hear appeals from Kenya's old (pre-2010) Industrial Court awards, striking out Kenyatta University's appeal entirely.
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 hear an appeal filed directly from the pre-2010 Industrial Court (as established under the Trade Disputes Act and the Labour Institutions Act, 2007)
- 2.Whether Section 27 of the Labour Institutions Act validly conferred a right of direct appeal to the Court of Appeal
- 3.Whether Sections 22 and 7 of the Sixth Schedule to the 2010 Constitution confer jurisdiction over appeals from the pre-2010 Industrial Court
Key legal issues
#Whether the Court of Appeal has jurisdiction over direct appeals from the pre-2010 Industrial Court established under Section 14 of the Trade Disputes Act
It has no jurisdiction; awards of that court were final under Section 17 of the Trade Disputes Act and could not be questioned, reviewed or removed by any remedy
The Industrial Court established under Section 14 of the Trade Disputes Act was a tribunal subordinate to the High Court, with the judge sitting with two assessors. Section 17 of that Act made its awards final and immune from review, restraint or removal by prohibition, injunction or certiorari. The cause of action here arose before 27 August 2010, so the post-2010 appeal regime does not apply. The appeal was therefore struck out.
Whether Section 27 of the Labour Institutions Act validly conferred a right of direct appeal to the Court of Appeal
It did not; the section was ultra vires the repealed Constitution and null and void, and in any event was declared unconstitutional and later repealed
Under the repealed Constitution, the Court of Appeal's jurisdiction under Section 64(1) was to hear appeals from the High Court, not direct appeals from tribunals or subordinate courts. Parliament's power under Section 65(1) was only to establish courts subordinate to the High Court. Section 27 of the Labour Institutions Act therefore exceeded Parliament's power; it was also declared unconstitutional in Kemri v Agnes Muthoni and deleted when Part III of the Act was repealed by Section 31 of Act No. 20 of 2011.
Whether transitional provisions in the Sixth Schedule to the 2010 Constitution confer appellate jurisdiction over pre-2010 Industrial Court awards
They do not; Section 22 must be read with Section 7, and existing laws continue in force only as construed in conformity with the new Constitution, which does not retroactively elevate the pre-2010 Industrial Court
Section 7 of the Sixth Schedule legitimises laws enacted under the old order and sanctions their continuity, but subject to interpretation and application consistent with the new constitutional order. The pre-2010 Industrial Court was not a court of equal status to the High Court; its judges were not sworn as existing judges under the 2010 Constitution. Transitional provisions therefore cannot cure the want of appellate jurisdiction.
Legal principles established
#- The Court of Appeal has no jurisdiction to entertain direct appeals from awards of the pre-2010 Industrial Court established under Section 14 of the Trade Disputes Act, whose awards were final under Section 17 of that Act
- Where a judge of the Industrial Court sat with assessors, the Court of Appeal has no jurisdiction to entertain a direct appeal from that tribunal
- Section 27 of the Labour Institutions Act purporting to confer direct appeals to the Court of Appeal was ultra vires Sections 64(1) and 65(1) of the repealed Constitution and was null and void
- Direct appeals to the Court of Appeal lie only from the post-2010 Industrial Court (now the Employment and Labour Relations Court), a court of equal status to the High Court, pursuant to Section 17 of the Industrial Court Act No. 20 of 2011
Court orders
#- 1.The appeal and cross-appeal struck out for want of jurisdiction on the part of the Court
- 2.Each party to bear its own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Industrial Court (pre-2010, established under Section 14 of the Trade Disputes Act)
- Industrial Court Cause No. 160 of 2009
- Jurisdiction invoked
- Section 17 of the Employment and Labour Relations Court Act 2011 and Section 64(1) of the repealed Constitution considered in determining whether the Court of Appeal had jurisdiction over a direct appeal from the pre-2010 Industrial Court; the Court ultimately found it had none
Relief refused
#Hearing of the appellant's appeal on the merits
The Court had no jurisdiction to hear direct appeals from the pre-2010 Industrial Court, whose awards were final under Section 17 of the Trade Disputes Act and which was a tribunal subordinate to the High Court
Costs
Each party is to bear its 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.
The basic rule of thumb as regards the jurisdiction of this Court to hear a direct appeal from the Industrial Court is this: in any matter where a judge of the Industrial Court sat with assessors, this Court has no jurisdiction to entertain a direct appeal.
The final order is we hereby strike out both the appeal and cross-appeal for want of jurisdiction on the part of this Court. Each party is to bear its own costs.
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
We find and hold that Section 27 of the Labour Institution Act as enacted was ultra vires, null and void.
The pre-2010 Industrial Court is not a court of equal status to the post-2010 Industrial Court. The former Industrial Court was a subordinate court and a tribunal which was not a court of equal status to the High Court.
Issues in the judgment
#The caption lists two respondents (University Academic Staff Union as 1st respondent and Lucy Mugwere as 2nd respondent), but the body of the judgment refers to a 3rd respondent, Joel Menya Otedo (now deceased), and to the termination of both the 2nd and 3rd respondents' contracts
The Trade Disputes Act is referred to inconsistently as Cap 324 and Cap 234 of the Laws of Kenya in different passages of the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenyatta University v University Academic Staff Union & another [2019] KECA 908 (KLR)", Case Analysis (2019). Civil Appeal No. 222 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/908/eng@2019-03-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.