United States International University [USIU] & 3 others v Attorney General & 13 others [2016] KEELRC 1725 (KLR)
The bottom line
#Kenya's Industrial Court struck down Section 32(2) as unconstitutional but confirmed that all employment cases decided by its former judges between 2010 and 2012 remain fully valid.
What this practically means
#Executive summary
#Key legal issues
#Constitutionality of Section 32(2) of the Industrial Court Act
Section 32(2) is unconstitutional, null and void, as it deems persons appointed as Judges of a Superior Court outside Article 166(1)(b) and effectively amends the Constitution
A Judge under the Industrial Court Act is defined as a person appointed under Article 166(1)(b), which requires recommendation by the Judicial Service Commission. The serving Judges were not so appointed and there was no evidence the JSC's advice was obtained under the Labour Institutions Act. Section 32(2) created an extra-constitutional route to judgeship and an inconsistent tenure under Articles 167 and 172. Following Michuki and Taib, legislation cannot amend the Constitution. The Section was therefore declared unconstitutional.
Whether the former Judges were required to take the oath of office under Article 74
They were not required to take the oath of office, as they were neither appointed under the Constitution nor State Officers
Judges of the old Industrial Court were appointed under the Trade Disputes Act and reappointed under the Labour Institutions Act, which contained no oath requirement. They were not appointed under the old or new Constitution and did not fall within the category of State Officers required to be sworn under Article 74. Prieto Bail Bonds was distinguished because in that case an express legal requirement to take an oath existed.
Validity of proceedings and decisions made by the former Judges between 27th August 2010 and 12th July 2012
The proceedings and decisions were constitutional, legal and valid; the Judges held over under transitional provisions until new Judges were sworn in
Section 22 of the 6th Schedule and Section 33 of the Industrial Court Act preserved pending judicial proceedings, and Section 31 of the 6th Schedule preserved existing public offices as if appointed under the Constitution. The former Judges derived transitory authority from the Constitution and primary authority from the Acts under which they were appointed. Continuity of institutional work was intended; there was no hiatus, and the new Court succeeded the old when new Judges were sworn in July 2012.
Whether the former Judges were De Facto Officers
The Court declined to characterise them as De Facto Officers; they were Judges properly so called acting under lawful authority
A De Facto Officer has no lawful authority, whereas these Judges derived authority from valid legislation and constitutional transitional provisions. They did not assume the office unlawfully nor acquire judgeship through adverse possession. The de facto officer doctrine was unnecessary and would contradict the accepted position that jurisdiction derives from legislation or the Constitution.
Legal principles established
#- Legislation cannot deem persons appointed as Judges of a Superior Court in a manner that bypasses the constitutional criteria for judicial appointment; such a provision amends the Constitution and is void
- Transitional provisions in the Constitution preserved the offices of public officers, including Judges of the former Industrial Court, to serve until the new constitutional Court was established
- Pending judicial proceedings under Section 22 of the 6th Schedule include all matters filed and pending until the new Court with new Judges was in place, not only matters active on the effective dates
- Judges of the former Industrial Court were not required to take the oath of office under Article 74, as they held public office under legislation, not State office under the Constitution
Court orders
#- 1.Section 32(2) of the Industrial Court Act [Employment and Labour Relations Court Act] is declared unconstitutional, null and void
- 2.All the proceedings and decisions of the Court presided over by the Hon. Judge I.E.K Mukunya, subject matter of the consolidated Petitions, declared constitutional, legal and valid
- 3.Parties to meet their own costs of the Petitions
- Jurisdiction invoked
- Constitution of Kenya 2010, Articles 162(2) and 165; jurisdiction over consolidated constitutional Petitions directed by the Chief Justice to be heard by 3 Judges of the Industrial Court
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- N S S (suing on behalf of his son B.P.S., a minor) v Tata Chemicals Magadi Limited[2017] KEHC 3263 (KLR)25 Aug 2017followed
- Okiya Omtatah Okoiti v Cabinet Secretary for Water and Irrigation & 6 others [2016] KEELRC 49 (KLR)[2016] KEELRC 49 (KLR)13 Oct 2016
Cite this brief
#Cite this brief
Caselaw, "United States International University [USIU] & 3 others v Attorney General & 13 others [2016] KEELRC 1725 (KLR)", Case Analysis (2016). Consolidated Petitions (various Petitions consolidated at the High Court and transferred to the Industrial Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1725/eng@2016-02-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.