Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCDismissedJudicial Review Application (substantive application following leave granted on 15th August 2012)· [2014] KEELRC 95 (KLR)

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)

Industrial Court of Kenya
5 December 2014
1,875 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

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

#
The Exparte Applicant sought judicial review orders of certiorari to quash an Award and Decree of the former Industrial Court (Tribunal) dated 11th July 2012 in Cause No. 514(N) of 2009, contending the Tribunal lacked jurisdiction because the claimant (the Interested Party) was a Receiver Manager under the Companies Act and not an employee. Leave was granted ex parte by Abuodha J on 15th August 2012. The 1st and 2nd Respondents filed grounds of opposition asserting the Tribunal acted within its statutory mandate, and the Interested Party filed a preliminary objection arguing the application was time barred, the impugned jurisdictional ruling having been made on 2nd June 2011. The court framed three issues: limitation, jurisdiction, and due process. It held that the Tribunal's ruling of 2nd June 2011 conclusively determined its jurisdiction by finding an employer-employee relationship and dismissing the preliminary objection, so time for judicial review ran from that date, not from the award of 11th July 2012. Under section 9(3) of the Law Reform Act and Order 53 Rule 2 of the Civil Procedure Rules, certiorari must be sought within six months, a period that cannot be extended. The court also, echoing Kibunja J, set aside the leave previously granted, leaving the substantive application without leave and bound to fail. Although expressing the obiter view that the erstwhile Industrial Court had jurisdiction, the court dismissed the application and ordered the Exparte Applicant to pay the costs.

Key legal issues

#
01

Limitation - six-month period for certiorari

Holding

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

Reasoning

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.

p. 4
02

Whether leave should be set aside

Holding

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

Reasoning

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.

p. 4
03

Jurisdiction of the erstwhile Industrial Court

Holding

Obiter: the erstwhile Industrial Court had jurisdiction because the dispute was founded on an employer-employee relationship

Reasoning

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.

p. 4

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. 1.Leave granted on 15th August 2012 is set aside, leaving the substantive application without leave
  2. 2.The substantive application for judicial review consequently fails
  3. 3.The Exparte Applicant to pay the costs of the Application

Authorities

#

Legislation

  • Labour Institutions ActPart V; Section 3; Sections 12, 15; Section 27 (repealed)
  • Constitution of Kenya 2010Article 162(2)
  • Industrial Court ActSection 10
  • Companies ActChapter 486 (provisions on Receiver Manager)
  • Employment ActSections 43, 45, 87(1)
  • Civil Procedure RulesOrder 53 Rule 2
  • Law Reform ActSection 9(3)
  • Industrial Court RulesRule 32

Cases cited (4)

  • Njuguna –vs– Minister for Agriculture
    [2000] EA 184
  • Kimanzi Mboo –vs– David Mulwa
    C.A.C No. 233 of 1996
  • Wilson Osolo –vs– John Ojiambo & Another
    (1996) eKLR
  • Judicial Review Appeal No. 6 of 2012 (Busia), Hon. S. M. Kibunja
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.