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ELRCPartially AllowedMiscellaneous Application by Notice of Motion dated 28th May 2013· [2013] KEELRC 826 (KLR)

Diana Kageni Mbari v National Empowerment Network of People With Hiv/Aids in Kenya (Nephak) [2013] KEELRC 826 (KLR)

Industrial Court of Kenya
26 July 2013
MOMaureen Onyango
1,458 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Industrial Court confirmed it can pull employment cases out of the Magistrate's Court itself, without needing the High Court.

What this practically means

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Executive summary

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The applicant, plaintiff in Milimani PMCC No. 7157 of 2007, an employment dispute against NEPHAK, moved the Industrial Court by Notice of Motion dated 28 May 2013 under Section 12(1)(a) of the Industrial Court Act and Sections 18(1)(b)(i) and 3A of the Civil Procedure Act, seeking withdrawal of the subordinate court suit to the Industrial Court for expedited hearing. She cited her brief three-month stay in Kenya, the closed 2013 diary at the Chief Magistrate's Court, and the pendency of the suit since August 2007. The respondent opposed, contending the delay was attributable to the applicant, that the application was defective, amounted to forum shopping, and that only the High Court could order a transfer since Section 18 of the Civil Procedure Act recognises only the High Court. Justice Maureen Onyango framed two issues: the court's jurisdiction to withdraw and transfer the file, and belatedness. She held that Article 162(2) establishes the Industrial Court as a superior court with High Court status, and Article 165(5) ousts the High Court's jurisdiction over matters within Article 162(2) courts. The pre-Constitution Civil Procedure Act could not override the Constitution; under Schedule 6 clause 7 existing law must be conformed to the Constitution. The proper forum was therefore the Industrial Court itself. On belatedness, the court could not determine delay in a matter not yet before it, and the prayer for an early hearing date was rejected. The court transferred the suit and made no order on costs, the respondent having admitted it did not oppose the transfer.

Key legal issues

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01

Jurisdiction to withdraw a suit from a subordinate court and transfer it to the Industrial Court

Holding

The Industrial Court is the proper court for such an application; the High Court lacks jurisdiction over matters reserved to courts under Article 162(2)

Reasoning

Article 162(2) creates the Industrial Court as a superior court with the status of the High Court. Article 165(5) removes from the High Court jurisdiction over matters within Article 162(2) courts' jurisdiction. The Civil Procedure Act, enacted before the Constitution, cannot override it; under Schedule 6 clause 7 existing law must be read with adaptations to conform with the Constitution. Both parties conceded the suit fell within the Industrial Court's jurisdiction.

p. 3
02

Whether the application was belated

Holding

The belatedness argument was misplaced because the main case was not yet before the Industrial Court

Reasoning

The Respondent argued the application was belated, but any delay determination could only be made in the main suit. Since the case was not yet transferred to the Industrial Court, the court could not determine delay in a matter not before it, nor fix an early hearing date.

p. 3

Legal principles established

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  • The Industrial Court is a superior court with the status of the High Court and is the proper court for applications concerning matters within its jurisdiction
  • Pre-existing legislation must be construed with adaptations necessary to conform with the Constitution where there is conflict

Court orders

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  1. 1.PMCC 7157 OF 2007 between DIANA KAGENI versus NATIONAL EMPOWERMENT NETWORK OF PEOPLE WITH HIV/AIDS IN KENYA (NEPHAK) is withdrawn from the Chief Magistrate's Court at Milimani and transferred to the Industrial Court for hearing and final determination
  2. 2.No orders for costs, on the grounds that the Respondent did not object to the transfer

Authorities

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Legislation

  • Industrial Court ActSection 12(1)(a)
  • Civil Procedure ActSection 18(1)(b)(i)
  • Civil Procedure ActSection 3A
  • Constitution of KenyaArticle 162(2)
  • Constitution of KenyaArticle 165
  • Constitution of KenyaArticle 165(5)
  • Constitution of KenyaSixth Schedule, clause 7
Jurisdiction invoked
Section 12(1)(a) of the Industrial Court Act; Article 162(2) of the Constitution

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Diana Kageni Mbari v National Empowerment Network of People With Hiv/Aids in Kenya (Nephak) [2013] KEELRC 826 (KLR)", Case Analysis (2013). Miscellaneous Application by Notice of Motion dated 28th May 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/826/eng@2013-07-26

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