SAMSON GWER & 5 OTHERS V KENYA MEDICAL RESEARCH INSTITUTE (KEMRI) & 2 OTHERS [2013] KEELRC 379 (KLR)
The bottom line
#Kenya's Industrial Court confirmed the High Court could validly transfer employment rights petitions filed before the new court became operational, dismissing both jurisdiction and res judicata objections.
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 Industrial Court has jurisdiction to hear and determine the petition, given that the High Court transferred it and the 1st Respondent contends the High Court had no jurisdiction to transfer a matter filed in a court without jurisdiction
- 2.Whether the Petitioners' claim is res judicata by reason of the prior conciliation process under the Labour Relations Act
Key legal issues
#Jurisdiction of the High Court to entertain and transfer an employment-related constitutional petition at a time when the Industrial Court was not yet operational
The High Court had jurisdiction when the petition was filed on 5th December 2011 because the Industrial Court only became fully operational upon gazettement of its judges on 19th July 2012; the transfer order of 28th September 2012 was therefore valid
The court noted that Article 23(1) vests Bill of Rights jurisdiction in the High Court, while Article 165(5)(b) ousts High Court jurisdiction over matters within Article 162(2) courts. However, the Industrial Court under the 2011 Act only became functional once its judges were appointed and gazetted on 19th July 2012. Section 22 of the Sixth Schedule contemplates pending matters continuing before the same or corresponding courts. Interpreting the Constitution under Article 259(1)(b) to advance the rule of law and human rights, the court declined to hold there was a jurisdictional vacuum; ordering the petitioners to start afresh would contravene Article 159(2) and cause delay and prejudice.
Whether prior conciliation of a trade dispute under the Labour Relations Act renders a subsequent petition res judicata
No. A conciliator's recommendations do not amount to a judicial determination, so the doctrine of res judicata does not apply
The court examined Sections 68, 69 and 73 of the Labour Relations Act, which govern the recording of settled disputes, certificates of unresolved disputes, and referral to the Industrial Court. It held that the conciliation process cannot be equated to a determination by a court of law. The submission's only real value was to show the petitioners knew the dispute was a labour dispute at the time they filed in the High Court. The point in limine was accordingly dismissed.
Legal principles established
#- The High Court had jurisdiction to hear employment-related Bill of Rights petitions filed between the effective date of the Constitution 2010 and the appointment of Industrial Court judges on 12th July 2012, because the Industrial Court was not yet functional; such a petition could validly be transferred to the Industrial Court once established
- Part III of the Labour Institutions Act, 2007, including Section 12, was repealed by Section 31 of the Industrial Court Act, 2011
- Requiring a petitioner with closed pleadings and filed submissions to start afresh would offend Article 159(2) of the Constitution
Court orders
#- 1.The Preliminary Objection on jurisdiction is dismissed
- 2.The Preliminary Objection on res judicata is dismissed
- 3.The matter will take its normal course before the Industrial Court
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Articles 22 and 23 of the Constitution of Kenya 2010 (petition for enforcement of Bill of Rights), transferred to the Industrial Court established under Article 162(2)(a) and the Industrial Court Act, No. 20 of 2011
Relief refused
#1st Respondent's request that the petition be dismissed for want of jurisdiction (nothing having been validly transferred from the High Court)
The High Court had jurisdiction when the petition was filed because the new Industrial Court was not yet operational; the transfer order was therefore validly made
1st Respondent's alternative request that the matter be referred back to the Constitutional and Human Rights Division of the High Court at Milimani
The Preliminary Objection was dismissed in its entirety
Preliminary objection that the claim is res judicata
A conciliation process under the Labour Relations Act is not equivalent to a determination by a court of law
Costs
No costs order appears in the judgment
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.
It is therefore my considered decision that the High Court had at the time the matter was filed, jurisdiction to entertain, hear and determine this petition and therefore had power and authority to transfer it to the Industrial Court when it became duly established and legally functional.
The Preliminary Objection is accordingly dismissed.
This point in limine is therefore dismissed. The matter will take its normal course.
It would be unreasonable and dis-proportionate to order the petitioner to start their proceedings afresh, before this court, in a matter where all the pleadings have closed and final submissions filed
the court will be most hesitant to find that between the effective date of the Constitution of Kenya, 2010 and the time the Industrial Court of Kenya as presently established became fully operational with the appointment of the Industrial Court Judges, there was no court in the Republic of Kenya which could hear and determine applications for redress
Issues in the judgment
#The judgment refers to the High Court transfer order with two different dates
The judgment cites 'Section 22 to the Sixth Schedule pursuant to Article 202' although Article 202 does not appear to relate to the Sixth Schedule in the quoted text
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "SAMSON GWER & 5 OTHERS V KENYA MEDICAL RESEARCH INSTITUTE (KEMRI) & 2 OTHERS [2013] KEELRC 379 (KLR)", Case Analysis (2013). Industrial Court Petition (transferred from Nairobi High Court Petition No. 295 of 2011). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/379/eng@2013-05-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.