Kenya Ports Authority v Jennifer Alois Wandera (Adminstratrix of the estate of Alois Wandera Odhiambo-Deceased) [2016] KEELRC 200 (KLR)
The bottom line
#Kenya's Employment Court ruled that missing a technical step like leave to appeal does not kill an employment case transferred from the civil courts.
What this practically means
#Executive summary
#Key legal issues
#Whether leave was required and its absence invalidated the Appeal
Although leave was required under the Civil Procedure Rules for an appeal from Summary Judgment not issued under Order XLII Rules 5, 7 and 10, the default in obtaining leave does not invalidate the Appeal after transfer to the specialized Employment and Labour Relations Court
The Court noted the Appeal was transferred on jurisdictional grounds, removing it from the ambit of the Civil Procedure Act and Rules into the specialized regime under the Employment and Labour Relations Act. The dispute has its roots in employment. The Court's overriding objective, over 40 years, has been substantive justice, and statutory provisions on the overriding objective demand it be given greater weight than procedural technicalities.
Application of the overriding objective to transferred matters
The primary duty of the Employment and Labour Relations Court over matters transferred from other Courts is to do substantive justice
The Court observed that the reconstruction of the Employment and Labour Relations Court and conferment of exclusive employment jurisdiction saw many disputes transferred without a legislative framework on their reception and handling. In that regulatory vacuum, the Court is guided by its principal objective of doing substantive justice, supported by Sections 3 and 20 of the ELRC Act and Rule 36 of the Industrial Court Procedure Rules 2010.
The anomaly of the parties litigating a labour dispute in the Chief Magistrate's Court in 2008
The Court questioned why the parties went before the Chief Magistrate's Court in 2008 while the Industrial Court was in operation
The Summary Judgment obtained by the Respondent originated from a decision made by the Industrial Court, yet the parties sought summary judgment before the Chief Magistrate's Court in 2008 when the Industrial Court was already in operation. The Court found this unclear but treated it as context rather than a ground of decision.
Legal principles established
#- Substantive justice is to be given greater weight than procedural technicalities
- A procedural default in the civil regime should not invalidate a transferred Appeal in the specialized jurisdiction
Court orders
#- 1.The Preliminary Objection is rejected
- 2.Parties to set down the Appeal for hearing
- 3.Delivered at Mombasa this 9th day of December, 2016
- On appeal from
- High Court, Mombasa (transferring court; underlying matter from the Chief Magistrates Court at Mombasa)
- Appeal Number 61 of 2009
- Jurisdiction invoked
- Employment and Labour Relations Act 2007 - transfer of the Appeal from the High Court to the Employment and Labour Relations Court on the basis of jurisdiction (order issued 4th August 2016)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Ports Authority v Jennifer Alois Wandera (Adminstratrix of the estate of Alois Wandera Odhiambo-Deceased) [2016] KEELRC 200 (KLR)", Case Analysis (2016). Appeal Number 8 of 2016 (formerly High Court Mombasa Appeal Number 61 of 2009). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/200/eng@2016-12-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.