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ELRCDismissedCause before the Industrial Court re termination of employment and advocate's fees (application dated 27th April 2015)· [2015] KEELRC 605 (KLR)

Anthony Thuo Kanai v Canon Assurance Limited [2015] KEELRC 605 (KLR)

Industrial Court of Kenya (Employment and Labour Relations Court)
23 July 2015
NMNzioki wa Makau
2,185 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court refused to pause an employee's unfair termination case, confirming it alone decides employment disputes.

What this practically means

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Executive summary

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By a notice of motion dated 27th April 2015, Canon Assurance Limited, the Respondent, sought a stay of the hearing of the Claimant's employment proceedings pending the hearing and determination of Court of Appeal Civil Appeal No. 177 of 2014, and in the alternative, a determination whether the Claimant, an advocate formerly employed by the Respondent from January 2007 to 13th November 2012, could simultaneously claim unfair termination as an employee and raise invoices for fees for the same services. The Respondent, through counsel, argued that the Claimant had agreed an adequate annual salary, had not been engaged in dual capacity, and had raised bills of costs that were the subject of the pending appeal, relying on the Advocates Act and the Advocates (Practice) Rules, the control, integration and business-reality tests from Stanley Mungai Muchai v National Oil Corporation, and Gamumu v Coastline Safaris. The Claimant opposed, distinguishing a contract of employment from an advocate's retainer, relying on Majanja J.'s decision in the High Court petition, Uhuru Highway Development Ltd, Pop-In (Kenya) Ltd on issue estoppel, and Article 162(2)'s exclusive conferral of employment jurisdiction on the Industrial Court. The court applied the Global Tours & Travels stay test and Githua J.'s three principles, found the only instructive appeal ground - on Article 162(2) and multiple forums - neither arguable nor winnable, held labour issues to be the exclusive preserve of the Industrial Court, and dismissed the application with costs to the Claimant.

Key legal issues

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01

Threshold for stay of proceedings

Holding

The application for stay failed to meet the threshold; no arguable ground was established in the pending appeal regarding Article 162(2)

Reasoning

The court applied the tests in Global Tours & Travels and Githua J.'s three principles: prima facie arguable case, expedition, and sufficient cause in the interest of justice. The only instructive ground in the Memorandum of Appeal concerned multiple forums and Article 162(2), which the court found plainly unarguable since the Constitution limits the High Court's jurisdiction on labour matters. Accordingly no basis existed for the stay.

p. 4
02

Exclusive jurisdiction of the Industrial Court over employment disputes

Holding

Labour and employment issues are the exclusive preserve of the Industrial Court under Article 162(2); the High Court petition dealt with taxation, not labour issues per se

Reasoning

The court observed that the High Court Constitutional Petition No. 433 of 2013 was not on labour and employment issues per se, and Majanja J. had correctly determined that labour issues were exclusively for the Industrial Court. Any challenge to that aspect of the decision in the pending appeal was characterised as a no-brainer, incapable of success.

p. 3

Legal principles established

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  • Article 162(2) confers exclusive jurisdiction over labour and employment matters on the Industrial Court, excluding the High Court
  • A stay of proceedings is a matter of judicial discretion exercised in the interest of justice, weighing the need for expeditious disposal, prima facie arguability of the intended appeal, judicial time and expedition of the application

Court orders

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  1. 1.The application dated 27th April 2015 is dismissed with costs to the Claimant
  2. 2.Parties will take dates before the court immediately after the Ruling

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 162(2)
  • Constitution of Kenya, 2010Article 50
  • Employment ActSection 92
  • Advocates ActSection 44
  • Advocates (Practice) RulesRule 4 / Rule 4(ii)
  • Industrial Court ActSection 12

Cases cited (9)

  • Stanley Mungai Muchai v National Oil Corporation
    [2012] eKLR
  • Mwalimu Kalimu Gamumu & 35 Others v Coastline Safaris Limited & 2 Others
    [2013] eKLR
  • Canon Assurance Limited v Anthony Thuo Kanai & Another
    [2014] eKLR
  • Machira & Co. Advocates v Arthur Magugu & Another
  • Uhuru Highway Development Limited v Central Bank & 2 Others
    [1995] eKLR
  • Kenya Power & Lighting Company Limited v Esther Wanjiru Wokabi
    [2014] eKLR
  • R v Weisz and Another ex parte Hector MacDonald
    [1959] All ER vol. 2
  • Pop-In (Kenya) Ltd & 3 Others v Habib Bank AG Zurich
    [1990] eKLR
  • Global Tours & Travels Ltd Nairobi HC Winding Up Cause No. 43 of 2000
Jurisdiction invoked
Article 162(2) of the Constitution and Section 12 of the Industrial Court Act

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, "Anthony Thuo Kanai v Canon Assurance Limited [2015] KEELRC 605 (KLR)", Case Analysis (2015). Cause before the Industrial Court re termination of employment and advocate's fees (application dated 27th April 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/605/eng@2015-07-23

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