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ELRCOtherNot stated in the judgment extract· [2015] KEELRC 647 (KLR)

Kenya Airlines Pilots Association v Kenya Airways Limited & Jambojet Limited [2015] KEELRC 647 (KLR)

Industrial Court of Kenya (Employment and Labour Relations Court)
28 July 2015
HWHellen Wasilwa
2,827 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Claimants, a registered trade union representing pilots with a recognition agreement and collective bargaining agreement with the 1st Respondent, filed a Notice of Motion dated 30th March 2015 seeking an interlocutory injunction to restrain the Respondents from commencing or continuing commercial flights to Lamu, Ukunda, Malindi, Kisumu and Eldoret using chartered Dash 8 Q400 aircraft on a wet-lease agreement. The Applicants contended that the wet-lease arrangement with DAC Aviation E.A Limited breached the Civil Aviation Act and Regulations, was entered into without consultation with the union during a pending conciliation before the Labour Commissioner, and threatened their members with redundancy. The Respondents objected that the court lacked jurisdiction over commercial aviation matters, that no employer-employee dispute was demonstrated, and that no prima facie case under the Giella v Cassman Brown principles had been established. The court framed two issues: jurisdiction, and whether a prima facie case existed. Relying on Owners of Motor Vessels 'Lillian S' v Caltex Oil (K) Limited, the court held that it must first certify its own jurisdiction. It found the matters raised were not labour-related per se but lay in the commercial field of the High Court, noting the Applicants had not demonstrated how their members would lose from the commercial arrangement. Having found no jurisdiction, the court declined to consider the merits and made no orders on the application, instead transferring the file to the Commercial Division of the High Court. Judgment was delivered on 28th July 2015 by Lady Justice Hellen Wasilwa.

Key legal issues

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01

Whether the Industrial Court has jurisdiction over an application seeking to restrain commercial flights under a wet-lease agreement

Holding

The court held it lacked jurisdiction because the matters raised were commercial rather than employment or labour relations matters.

Reasoning

The court examined Section 12(1) of the Industrial Court Act and Article 162(2) of the Constitution, which confine its jurisdiction to employment and labour relations disputes. The relief sought - stopping commercial flights on wet-leased aircraft - did not, in the court's view, raise a labour dispute per se. The court noted it would have entertained the application had the Applicants demonstrated how their members stood to lose from the commercial arrangement, but they had not done so.

p. 6
02

Whether a court without jurisdiction should proceed to consider the merits

Holding

No - having found a lack of jurisdiction, the court declined to make further orders or consider the merits of the application.

Reasoning

Relying on the Court of Appeal's decision in Owners of Motor Vessels 'Lillian S' v Caltex Oil (K) Limited, the court held that jurisdiction must be decided at the earliest opportunity on the material before it, and that a court without jurisdiction must down tools. The court therefore did not reach the question whether a prima facie case had been established under the Giella v Cassman Brown principles.

p. 6

Legal principles established

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  • A court must satisfy itself of its jurisdiction before proceeding, and must down tools the moment it finds it lacks jurisdiction.

Court orders

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  1. 1.The file transferred to the Commercial Division of the High Court to be heard and determined.

Authorities

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Legislation

  • Industrial Court ActSection 12(1), Section 12(3)(i) and (viii)
  • Industrial Court RulesRule 16
  • Constitution of KenyaArticle 162(2)
  • Labour Relations ActNo. 14 of 2007
  • Employment Act2007
  • Civil Aviation ActNo. 21 of 2013
  • Civil Aviation (Air Operator Certification and Administration) Regulations2013

Cases cited (5)

  • Karisa Chengo, Jefferson Kalama Kengha and Kitsao Charo Ngati vs Republic
    (2015) eKLR
  • Samuel Kamau Macharia and Another vs Kenya Commercial Bank & 2 others
    (2012) eKLR
  • Owners of Motor Vessels 'Lillian S' vs Caltex Oil (K) Limited
    (1989) LLR 1653 (CAK)
  • David Joseph Motion (As Administration of the Estate of Josephine Magdalene Motion) vs Kilimani Junior Academy Limited & 2 others
    (2014) eKLR
  • Giella v Cassman Brown
Jurisdiction invoked
Article 162(2) of the Constitution and Section 12(1) of the Industrial Court Act, 2011

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kenya Airlines Pilots Association v Kenya Airways Limited & Jambojet Limited [2015] KEELRC 647 (KLR)", Case Analysis (2015). Not stated in the judgment extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/647/eng@2015-07-28

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