Republic v Industrial Court (As established under the Labour Institutions Act No. 12 Of 2007) & 2 others exparte Industrial & Commercial Development Corporation [2014] KEELRC 95 (KLR)
The bottom line
#Kenya's Industrial Court dismissed a judicial review application filed too late, confirming the strict six-month deadline for quashing tribunal decisions cannot be extended.
What this practically means
#Executive summary
#Key legal issues
#Limitation - six-month period for certiorari
The judicial review application was time barred because the impugned jurisdictional ruling was delivered on 2nd June 2011 and the leave application was made outside six months from that date
The Tribunal's ruling of 2nd June 2011 determined its jurisdiction by finding an employer-employee relationship and dismissing the preliminary objection. Section 9(3) of the Law Reform Act and Order 53 Rule 2 of the Civil Procedure Rules require certiorari within six months of the impugned decision. The Applicant neither sought review nor appealed that ruling, so time ran from 2nd June 2011, not from the award of 11th July 2012.
Whether leave should be set aside
The leave granted ex parte on 15th August 2012 was set aside, since with full facts before it the court would most probably have declined leave
Relying on Kibunja J in the Busia judicial review appeal, the court held that had the materials presented at the substantive hearing been before the judge who granted leave, the orders of 15th August 2012 would have been different and leave would probably have been declined. Having set aside leave, the substantive application was left without leave and had to fail.
Jurisdiction of the erstwhile Industrial Court
Obiter: the erstwhile Industrial Court had jurisdiction because the dispute was founded on an employer-employee relationship
Although unnecessary given the finding on limitation, the court expressed itself convinced that the erstwhile Industrial Court had jurisdiction to hear and determine the dispute, since it was founded on an employer and employee relationship, and the Tribunal's ruling of 2nd June 2011 had validly dismissed the preliminary objection on jurisdiction.
Legal principles established
#- An application for certiorari must be filed within six months from the date of the impugned decision, and that period cannot be extended
- Where a tribunal has ruled on its own jurisdiction, time for seeking judicial review of that ruling begins to run from the date of that ruling, not from a subsequent award on the merits
- The appropriate procedure for challenging leave already granted in judicial review is to apply to the Judge who granted leave to set it aside
Court orders
#- 1.Leave granted on 15th August 2012 is set aside, leaving the substantive application without leave
- 2.The substantive application for judicial review consequently fails
- 3.The Exparte Applicant to pay the costs of the Application
- Jurisdiction invoked
- Judicial review under Order 53 of the Civil Procedure Rules and the Law Reform Act (Cap 26), challenging a decision of the former Industrial Court established under the Labour Institutions Act No. 12 of 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Industrial Court (As established under the Labour Institutions Act No. 12 Of 2007) & 2 others exparte Industrial & Commercial Development Corporation [2014] KEELRC 95 (KLR)", Case Analysis (2014). Judicial Review Application (substantive application following leave granted on 15th August 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/95/eng@2014-12-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.