Jagani & 3 others v Industrial Court of Kenya; Bakery, Confectionery, Food Manufacturing and Allied Workers’ Union (K) (Interested Party) (Miscellaneous Application 39 of 2012) [2023] KEELRC 2999 (KLR)
The bottom line
#Kenya's employment court quashed 2009 ex parte Industrial Court orders, confirming tribunals cannot grant final relief without hearing the other side.
What this practically means
#Executive summary
#Key legal issues
#Supervisory jurisdiction over the Industrial Court
At the time of filing, the High Court had jurisdiction to entertain an application for certiorari and prohibition against the Industrial Court, which was then subordinate to the High Court; the court therefore had jurisdiction to hear and determine the matter.
The court relied on section 65(2) of the repealed Constitution and Kenya Airlines Ltd v Kalpa, holding the Industrial Court subordinate to the High Court. Considering Article 162 of the 2010 Constitution, the court held it now had jurisdiction to determine such matters, though noting the Industrial Court's successor, the ELRC, now has equal status with the High Court, rendering the exercise academic.
Whether the Industrial Court's orders were tainted with illegality, irrationality or procedural impropriety
Although the Industrial Court had jurisdiction over the trade dispute, the ex parte orders of 29th June 2009 were final, far-reaching and granted without hearing the Applicants, and were therefore irrational and unreasonable, warranting certiorari.
Applying the Pastoli v Kabale guidelines, the court found that while the Industrial Court had jurisdiction (the dispute fell within section 2 of the Trade Disputes Act), the ex parte orders tantamount to final relief without a hearing amounted to procedural impropriety and irrationality. However, the underlying proceedings were not exhibited, so findings of irrationality based on lack of evidence could not be made.
Whether the Industrial Court had jurisdiction over the dismissal dispute
The court held the Industrial Court had jurisdiction, as the dispute fell within the statutory definition of a trade dispute under section 2 of the Trade Disputes Act.
The Applicants argued the Industrial Court lacked jurisdiction because the memorandum of claim concerned lockout while the orders concerned dismissal of 24 employees. The court applied the wide definition of trade dispute in section 2 of the Trade Disputes Act, which expressly includes disputes regarding dismissal of employees, and concluded the matter fell within the Respondent's jurisdiction under section 14(1).
Legal principles established
#- Under the repealed Constitution the Industrial Court was subordinate to the High Court and subject to its supervisory jurisdiction by way of judicial review, but following Article 162 of the Constitution of Kenya 2010 the Employment and Labour Relations Court is a court of equal status with the High Court.
- To succeed in judicial review, an applicant must show the decision is tainted with illegality, irrationality or procedural impropriety.
- Where an ex parte order is final in nature and tantamount to granting the substantive relief, granted without hearing the other party, it is irrational and unreasonable.
Court orders
#- 1.The applicant's application dated 17th July 2009 is found merited and is granted, quashing the impugned orders of the Industrial Court
- 2.Each party to bear their own costs
- Jurisdiction invoked
- Section 65(2) of the repealed Constitution of Kenya; Articles 162(1) and 162(2)(a) of the Constitution of Kenya, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jagani & 3 others v Industrial Court of Kenya; Bakery, Confectionery, Food Manufacturing and Allied Workers’ Union (K) (Interested Party) (Miscellaneous Application 39 of 2012) [2023] KEELRC 2999 (KLR)", Case Analysis (2023). Miscellaneous Application 429 of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2999/eng@2023-11-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.