https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1328

Export Processing Zones Authority Kenya & another v Kidenda & 2 others (Civil Appeal 221 of 2020) [2026] KECA 1328 (KLR) (10 July 2026) (Ruling) Neutral citation: [2026] KECA 1328 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Appeal 221 of 2020 K M'Inoti, EC Mwita & B Ongaya, JJA July 10, 2026 Between Export Processing Zones Authority Kenya 1st Appellant George Makateto 2nd Appellant and Fanuel Odede Kidenda 1st Respondent Cabinet Secretary, Ministry of Industry, Trade & Cooperatives Hon. Peter G. Munya, MGH 2nd Respondent The Attorney General 3rd Respondent (Being an appeal against the decision of the Employment and Labour Relations Court at Nairobi (Wasilwa, J.) dated 24th October, 2019 in ELRC Petition No. 110 of 2018) Ruling 1.This appeal emanates from the decision of the Employment and Labour Relations Court (ELRC) at Nairobi (Wasilwa, J.) made on 24th October, 2019 in ELRC Nairobi Petition No. 110 of 2018. The memorandum of appeal dated 5th June, 2020 sets out 11 grounds of appeal, including that the learned Judge gave directions for the disposal of the petition by way of written submissions and ignored that the petition was founded on contested facts, forgeries and fraud that ought to be strictly proved by viva voce hearing. 2.The background to the appeal is that the record of appeal shows that on 16th September, 2019 the respective counsel for the parties were present and after listening to them, the trial Court directed as follows;“I direct the parties take directions on hearing of main petition which directions are that the petition be dispensed of through written submissions. The petitioner to file submissions within 14 days and the respondents to file within 14 days. Mention 16th October, 2019.” 3.On 16th October the trial Court reiterated the directions in presence of the parties’ counsel thus;“The directions were that the petition proceeds by way of written submissions. That direction stands. The respondents have 14 days to file submissions. Mention on 24.10.2019.” 4.The record of appeal also shows that on 24th October, 2019 the parties’ respective counsel were present and counsel for the appellant had filed an application dated 4th October, 2019 seeking to vary the directions so that the petition pending before the trial court is heard by way of viva voce evidence and the parties be at liberty to call witnesses, with the effect that the directions on filing submissions on the pending petition would be varied accordingly. After listening to counsel present, the trial Court reiterated its earlier directions on filing of submissions on the main petition and it is those directions that are subject of the instant appeal. The trial Court directed as follows;“The directions being sought have already been on 14.10.2019. I will therefore not reopen the issue or sit on judgment on the same. The respondent to file submissions, 7 days. Mention 30.10.2019.” 5.The record shows that on 30th October, 2019 the trial Court fixed delivery of the judgment for 27th January, 2020. Further and subsequently, the trial Court did not deliver the pending judgment because the appellant moved this Court and obtained an order staying further proceedings in ELRC Nairobi Petition No. 110 of 2018 pending the hearing and determination of the instant appeal. 6.The appeal was fixed for hearing on 18th March, 2026. The learned counsel Mr. Masafu appeared for both appellants while learned counsel Mr. Anami appeared for the 1st respondent. The representative of the Attorney General for the 2nd and 3rd respondents was absent but having been duly served the hearing notice dated 4th March, 2026. 7.Prior to the hearing of the appeal, this Court engaged the respective counsel present on a preliminary issue about whether the Court has the relevant jurisdiction to hear an appeal from directions or an order for case management given by the ELRC like in the instant circumstances especially where leave to appeal had not been sought and obtained, and, whether such leave was necessary. Due to the preliminary jurisdictional issue, we could not proceed to consider the merits of the appeal unless we are satisfied that we have the requisite jurisdiction to hear the appeal. Consequently, we engaged and counsel for the parties present agreed to make oral submissions demonstrating either an automatic right of appeal existed or that leave to appeal (if necessary) had to be obtained before the trial Court or before the Court of Appeal. 8.We have taken into account the guiding principles in entertaining the instant concern which is in the nature of a preliminary point taken prior to hearing the appeal on merits. We are satisfied that the preliminary issue passes the test for the proper province of a preliminary objection because it is a pure point of law as to whether we have the jurisdiction to hear the present appeal, whether leave was necessary, and, in deciding the issue we will not need to exercise discretion. The uncontested assumption is that the impugned order or directions by the trial court were for case management to the effect that parties thereto file submissions on the main petition. 9.In Mukisa Biscuit Manufacturing Co. Ltd v. West End Distributors Ltd [1969] EA 696, the Court of Appeal for East Africa, Sir Charles Newbold V.P, defined a preliminary objection as follows;"A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.” 10.As to whether we have jurisdiction to entertain the instant preliminary point as raised by the Court and addressed by the counsel present, rule 1 (2) of the Court of Appeal Rules provides that this Court has inherent power to make any orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court. 11.The appellate court possesses both the inherent power and a fundamental duty to satisfy itself that it has jurisdiction and invite submissions from parties, as may be necessary in individual appeals, prior to determining an appeal on its merits. The reason is that jurisdiction goes to the root of a court's legal authority, it can be raised in limine (at the threshold or beginning) by the Court itself or by any party. 12.In Owners of the Motor Vessel "Lillian SS" v. Caltex Oil (Kenya) Ltd [1989] KLR 1, this Court firmly established that jurisdiction is everything, and without it, a court must down its tools at the earliest opportunity. Further, it was held that a question of jurisdiction can be raised by the court on its own motion or by a party and that whenever it is raised, it must be determined at the earliest opportunity possible. 13.We must therefore, as an appellate Court, satisfy ourselves that a valid jurisdiction to hear and determine the appeal exists before determining the merits because a judgment entered without jurisdiction is inherently a nullity. 14.In A.R. Antulay v. R.S. Nayak & Another (1988) 2 SCC 602, the Constitutional Bench of the Supreme Court of India held that a superior court must not exceed its jurisdiction and has an inherent obligation to refuse to hear a matter on merits if it lacks the statutory or constitutional competence to do so. The Court held that it is a well settled principle of law that if a court lacks jurisdiction over the subject-matter, its proceedings are invalid ab initio. Further, a superior court has the inherent power to decide its own jurisdiction and no amount of consent can confer jurisdiction upon a court which it does not possess under the law. 15.The Supreme Court in Macharia & another v Kenya Commercial Bank Ltd & 2 others [2012] KESC 8 (KLR) held that a court’s jurisdiction flows only from the Constitution or statute, and that no court may arrogate to itself jurisdiction that has not been expressly conferred, thus;“A court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a court of law could only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which was conferred upon it by law. The issue as to whether a court of law had jurisdiction to entertain a matter before it, was not one of mere procedural technicality; it went to the very heart of the matter, for without jurisdiction, the court cannot entertain any proceedings. Where the Constitution exhaustively provided for the jurisdiction of a court of law, the court must operate within the constitutional limits. It could not expand its jurisdiction through judicial craft or innovation. Nor could Parliament confer jurisdiction upon a court of law beyond the scope defined by the Constitution. Where the Constitution conferred power upon Parliament to set the jurisdiction of a court of law or tribunal, the legislature would be within its authority to prescribe the jurisdiction of such a court or tribunal by statute law.” 16.Bearing in mind the foregoing pertinent principles, the main preliminary point for our determination is whether the Court of Appeal has the relevant jurisdiction to hear an appeal from directions or an order given for case management by the ELRC in the instant circumstances, especially where leave to appeal had not been sought and obtained, and, whether such leave was necessary or available to the appellant. Put in another way, was the appellant required to apply and obtain leave from the ELRC or the Court of Appeal as a precondition to appeal against the ELRC’s directions or orders for case management or the appellant enjoyed a right to appeal, free from permission to do so. The preliminary point was canvassed through oral submissions by the respective learned counsel present at the hearing. 17.Mr. Masafu for the appellants submitted that no provisions in either the Civil Procedure Rules or the ELRC Procedure Rules required the appellants to apply for leave to appeal. He explained that the appellants filed an application dated 4th October, 2019, and upon hearing both parties, the learned trial Judge made certain orders of 24th October, 2019. It is pursuant to those orders that the appellants seek to appeal before this Court. Counsel submitted that Rule 71(3) of the ELRC Procedure Rules speaks of decisions and orders, and since the impugned order has the court’s seal and is signed, it is capable of being appealed. The rule states that a judgment, ruling, order or decision of the Court that has been certified, signed and sealed by the Registrar shall be conclusive evidence of the existence of the judgment, ruling, order or decision of the Court. Counsel further submitted that the orders appealed against essentially determined the appellants’ application dated 4th October, 2019, which is the reason the appellants were dissatisfied and filed the present appeal. 18.In response, Mr. Anami submitted that in Nyutu Agrovet Limited v. Airtel Networks Kenya Ltd [2019] eKLR, the Supreme Court held that Article 164(3) of the Constitution does not grant everyone direct access to the Court of Appeal. This means one must seek leave before appealing to this Court, particularly in the case of an interlocutory application, as made by the appellants in the present appeal. Therefore, the appellants’ right to appeal was not automatic. 19.On the argument that the appeal is founded under Rule 71 of the ELRC Procedure Rules, Mr. Anami submitted that the directions issued by the learned trial Judge on 16th September 2019 and subsequently reiterated on 24th October, 2019, were not court orders amenable to appeal as contended by the appellants’ counsel, but, they were simply directions for case management. He emphasized the need for the trial court to be allowed to administer the matters before it. Further, the directions by the court were issued because of the appellants’ conduct preceding the said directions, as shown in the record of appeal. Mr. Anami cited the case of Mbogo v Shah (1968) EA, asserting that the appellants failed to demonstrate that the court’s discretion was exercised wrongly. He concluded that the appellants could have sought leave before coming to this Court and that Rule 71 is not a shield they can run to. 20.In a rejoinder, Mr. Masafu urged this Court to consider the definition of an order under the Civil Procedure Rules. He maintained that the appellants have a right of appeal pursuant to Rule 71(3) of the ELRC Procedure Rules, and section 17 of the ELRC Act. 21.We have considered the submissions made for the parties by their respective learned counsel. 22.Article 164 (3) of the Constitution states as follows;“The Court of Appeal has jurisdiction to hear appeals from —a.the High Court; and,b.any other court or tribunal as prescribed by an Act of Parliament." 23.As correctly submitted by counsel for the respondent, in Nyutu Agrovet Ltd (supra), the Supreme Court held that Article 164(3) of the Constitution does not confer a right of appeal to any litigant and that the provision only defines the extent of the powers of this Court, but does not grant a litigant an unfettered access to this Court. As has been stated time and again, a right of appeal is created by the Constitution or statute. 24.With respect to appeals from the ELRC to this Court, section 17 of the ELRC Act states as follows;"(1) Appeals from the Court shall lie to the Court of Appeal against any judgement, award, order or decree issued by the Court in accordance with Article 164(3) of the Constitution." 25.We have considered the controversy of whether the trial Court’s decision given on 24th October, 2019 was an order or, as per submissions by Mr. Anami, directions in case management falling short of an order. The ELRC Act does not define “order”. However, section 13 of the ELRC Act states that orders of the ELRC are fully enforceable using the rules of the Civil Procedure Act. The section states that a judgment, award, order or decree of the ELRC shall be enforceable in accordance with the rules made under the Civil Procedure Act. It is our considered view that to give effect to that provision, the judgments, awards, orders or decrees of the ELRC are substantially as envisaged and defined under the Civil Procedure Act and the Civil Procedure Rules. 26.Section 2 of the Civil Procedure Act defines “order” to mean the formal expression of any decision of a civil court which is not a decree. We apply that overarching definition and find that when read together with rule 71(3) of the ELRC (Procedure) Rules, the decision of the trial Court given on 24th October, 2019 constituted an order of the Court once it was formally issued as duly signed and sealed by the deputy registrar on 1st November, 2019. 27.Section 12(3) of the ELRC Act provides that in exercise of its jurisdiction, the ELRC shall have power to make any of the following orders;i.interim preservation orders including injunctions in cases of urgency;ii.a prohibitory order;iii.an order for specific performance;iv.a declaratory order;v.an award of compensation in any circumstances contemplated under this Act or any written law;vi.an award of damages in any circumstances contemplated under this Act or any written law;vii.an order for reinstatement of any employee within three years of dismissal, subject to such conditions as the Court thinks fit to impose under circumstances contemplated under any written law; or,viii.any other appropriate relief as the Court may deem fit to grant. 28.We find that an order of the ELRC for purposes of case management is not essentially an order in the nature of a relief to a party before the Court (as contemplated in section 12 (3) of the ELRC Act) but it does not thereby fall short of a formal expression of a decision of a civil court (the ELRC) which is not a decree as envisage in section 2 of the Civil Procedure Act. Indeed, the decisions of the ELRC in case management and which invariably can be reduced into orders like the one impugned in the instant appeal are provided for in section 3 of the ELRC Act, as follows;1.The principal objective of this Act is to enable the Court to facilitate the just, expeditious, efficient and proportionate resolution of disputes governed by this Act.2.The Court shall in the exercise of its powers under this Act or the interpretation of the rights of individuals and parties, seek to give effect to the principle objective in subsection (1).3.The parties and their representatives, as the case may be, shall assist the Court to further the principal objective and, to that effect, to participate in the proceedings of the Court and to comply with directions and orders of the Court. 29.We therefore find that the decision of the trial Court made on 24th October, 2019 was reduced into the formal order given on 24th October, 2019 and issued on 1st November, 2019 thus;1.That the directions being sought have already been granted on the 14th October, 2019.2.That I will therefore not reopen the issue or sit on a judgment on the same.3.That the respondent to file submissions in 7 days.4.That mention on 30th October, 2019. 30.However, we reckon that the impugned orders and directions were for case management as envisaged under section 3 of the ELRC Act requiring parties to comply towards assisting the court to achieve the principal objective as opposed to orders as may be envisaged in section 12(3) of the Act being reliefs that the ELRC may grant to a party, final or interlocutory, on merits of a dispute before the ELRC. 31.Having found that the impugned order meets the definition in the Civil Procedure Act and as envisaged in the ELRC Act and Procedure Rules, the pertinent issue is whether the appellants could appeal as of right or they needed leave, or could not appeal at all. An appeal as of right means an absolute entitlement to a litigant to have this Court review a decision of the superior court such as the ELRC in the instant appeal. On the other hand, an appeal upon leave requires the intending appellants to first apply to the trial court or this Court for permission to appeal. A right to appeal or the need for leave is not inherent in litigants because it goes to the foundations of the appellate jurisdiction. We therefore reiterate that a right to appeal or a requirement for leave to appeal is strictly a creature of a statute or the Constitution. This Court cannot entertain an appeal unless the Constitution or statute expressly provides for that avenue to the appellant. 32.For example, in Munya v Kithinji & 2 others [2014] KESC 30 (KLR) the Supreme Court affirmed that an appeal lies as of right under Article 163(4) (a) of the Constitution to the Supreme Court when the issues determined by the courts below and presented for appeal to the Supreme Court involve the interpretation or application of the Constitution. Article 163(4) of the Constitution is express that appeal may lie – a) as of right in any case involving the interpretation or application of this Constitution; and, b) in any other case in which the Supreme Court, or the Court of Appeal, certifies that a matter of general public importance is involved, subject to sub-Article 5. We observe that Article 163(4) is elaborate on circumstances where an appeal to the Supreme Court is as of right and where certification which essentially entails obtaining leave, is necessary. 33.In Gujarat Agro Industries Co. Ltd. v. Municipal Corporation of the City of Ahmedabad [(1999) 4 SCC 468], the Supreme Court of India ruled that a right of appeal is a creature of statute. The legislature has the constitutional authority to qualify or conditionally grant this right, meaning statutory preconditions for filing appeals (such as pre-deposits or permission to appeal) are constitutionally valid. 34.Unlike Article 163(4) of the Constitution which provides for instances of appeal to the Supreme Court as of right and when certification or leave is required, Article 164(3) of the Constitution does not create a right of appeal to this Court, whether of right or with leave. 35.We have carefully examined the ELRC Act and find that orders and directions made pursuant to section 3 of the Act are specifically aimed at the efficient and expeditious determination of the disputes brought to the ELRC. The section requires parties to the disputes and their representatives to assist the ELRC to further the principal objective of facilitating the just, expeditious, efficient and proportionate resolution of the disputes. We take the view that orders and directions envisaged under section 3 of the ELRC Act are essentially for case management entailing matters such as scheduling orders, disclosures and further disclosures, the method of proving facts, adjournments, and, directions on filing timelines. Subject to existence of statutory provisions prescribing a right of appeal as may be enacted, such matters would generally not be appealable as of right because they fall under the discretionary interlocutory jurisdiction of the trial courts, like the ELRC, as authorised under the section. On the other hand, the final and interlocutory orders envisaged under section 12 (3) of the ELRC dealing with the merits of the dispute between the parties will usually fall for appeal as of right. Nevertheless, we hasten to caution that an appellate court entertains appeals on interlocutory orders with great circumspection because of the fundamental reason that the trial courts should be facilitated to expeditiously hear and determine the main suit or dispute with finality without unnecessary interruption. 36.We have considered that in Wandi v Muchira (Suing as the Administrator Ad Litem of Jane Muthoni Muchira) [2026] KESC 29 (KLR) the Supreme Court held where Parliament intends to require leave as a condition precedent to the exercise of the right of appeal, it does so expressly and in unambiguous terms. Further, the requirement for leave is therefore neither implied nor inferred from statutory silence. Rather, it is a deliberate legislative prescription. The Supreme Court further stated that Article 20(3)(a) of the Constitution obligates courts, in applying the Bill of Rights, to develop the law to the extent that it does not give effect to a right or fundamental freedom, thus;“As we observed in FAAF v RFM & 2 others [2025] KESC 45 (KLR), at para. 63, all laws must be interpreted and applied through the lens of the Bill of Rights, and where existing laws yield outcomes inconsistent with a right or fundamental freedom, the courts are under a duty to infuse those laws with the normative content of the Bill of Rights. This approach is consistent with the principle of harmonious interpretation under Articles 159 and 259, which require that the Constitution be construed in a manner that promotes its purposes, values, and principles, advances the rule of law, and facilitates the development of the law.”The Supreme Court rejected a restrictive interpretation that would deny the right of appeal as being anchored on Article 164(3) and concluded as follows;“59.Accordingly, and in the absence of any express statutory limitation, we hold that a decision of the High Court rendered in the exercise of its original jurisdiction in a succession matter is appealable to the Court of Appeal as of right. Any contrary position would be inconsistent with the Constitution’s transformative vision of a fair, accessible, and non-discriminatory system of justice.” 37.We similarly find that Section 17 of the ELRC Act confers an automatic right to appeal against the orders of the ELRC made on merits of the disputes as envisaged in section 12(3) of the Act. Further, section 17 of the Act states that appeals can be made against any judgment, award, order or decree issued by the ELRC, in accordance with the Constitution. The orders and directions made as envisaged in section 3 of the ELRC Act for case management are not excluded from the application of the provisions of section 17 of the Act with the outcome that orders and directions for case management given by the ELRC are appealable as of right. We make that holding particularly because if leave were required, such leave would be a creature of the Constitution or statute and none has been established to exist in the present circumstance. It is also our view that where the relevant provision conferring an appellate jurisdiction or pathway is silent if it can be invoked as of right or with leave, (like Article 164(3) of the Constitution and section 17 of the ELRC Act in the present circumstance) the absence of an express statutory provision for leave to appeal favours an anchoring of a right of appeal as an interpretation infusing the normative content of the Bill of Rights which favours a spontaneous right of access to justice. 38.It is our view that a purposive and harmonious interpretation of section 17 of the ELRC Act irresistibly make us conclude that orders for case management envisaged under section 3 of the Act speak to speedy, effective, and affordable resolution of disputes.We are alert that when such orders and directions are appealable as of right it appears to be inimical to the statutory principal objective in section 3 of the Act. Further, appeals should move as of right against decisions of the ELRC for final or interlocutory orders on merits of the dispute made pursuant to section 12 (3) and as envisaged in Article 164(3) of the Constitution and section 17 of the ELRC Act because, such orders determine the dispute between the parties on merits. 39.However, the ELRC Procedure Rules appear to mitigate the situation by prescribing stringent framework for pre-trial conference and case management which ideally must be satisfied prior to a litigant moving this Court in an appeal against an order and direction for case management. 40.In particular, and to give effect to the provisions of section 3 of the ELRC Act, Part VII of the ELRC (Procedure) Rules provides for “Pre-trial Conference”. Sub-rule 40 (5) provides that where a party fails to attend a pre-trial conference or fails to comply with the directions made by the Judge in terms of sub-rule (1), providing for the range of matters for which the ELRC will make orders and directions for case management, the matter may be fixed for hearing or dismissed, as the case may be. Sub-rule 40(6) provides that upon direction of the ELRC, the defaulting party may not appear at the hearing unless the ELRC, upon sufficient cause shown, makes appropriate orders. Sub-rule 40(7) states that a party affected by any order or directions made under provisions of the rule may apply, upon good reason shown, to the ELRC for variation of such orders or directions as the case may be, and the court may with or without conditions including as to costs, order or direct as just. Part IX of the ELRC Rules provide for “Case Management” and specific rules elaborate various aspects of case management. It is our view that the efficient and effective implementation of the pre-trial rules and the case management rules so as to give effect to the principal objective in section 3 of the ELRC Act and the guiding principles in Article 159 of the Constitution favour our finding that while there exist a right of automatic appeal to this Court against an order and direction of the ELRC made in pre-trial and case management as may be made pursuant to section 3 of the ELRC Act, an appellant will most unlikely be successful in such an appeal unless it is established that there was full compliance with the provisions of the Rules on pre-trial conference and case management. 41.While the ELRC (Procedure Rules, 2024 as cited enhanced the stringent measures, the ELRC (Procedure) Rules, 2016 applicable as at the time of the impugned order appealed against made substantially similar provisions on pre-trial and case management. Further, in the absence of a statutory provision providing for leave to appeal, we cannot presume leave must be obtained from the ELRC or this Court. Leave to appeal must be based on a statutory provision and which we find has not been shown to exist with respect to an appeal against the order and direction of the ELRC made for purposes of case management as envisaged in section 3 of the ELRC Act. 42.In Wandi v Muchira (Suing as the Administrator Ad Litem of Jane Muthoni Muchira) [2026] KESC 29 (KLR) (supra)the Supreme Court held that there is no legal basis for imposing a requirement of leave as a prerequisite for lodging an appeal to the Court of Appeal against a decision of the High Court rendered in the exercise of its original jurisdiction in a succession matter. Such a requirement, not being anchored in either the Constitution or statute, cannot properly be sustained. The Supreme Court further held as follows;“56.In resolving this question, we are guided by Article 20(3)(a) of the Constitution, which obligates courts, in applying the Bill of Rights, to develop the law to the extent that it does not give effect to a right or fundamental freedom. As we observed in FAAF v RFM & 2 others [2025] KESC 45 (KLR), at para. 63, all laws must be interpreted and applied through the lens of the Bill of Rights, and where existing laws yield outcomes inconsistent with a right or fundamental freedom, the courts are under a duty to infuse those laws with the normative content of the Bill of Rights. This approach is consistent with the principle of harmonious interpretation under Articles 159 and 259, which require that the Constitution be construed in a manner that promotes its purposes, values, and principles, advances the rule of law, and facilitates the development of the law.” 43.In Waibara v Kibeh & another [2019] KESC 61 (KLR) the Supreme Court reaffirmed that an appeal can only be brought before it under Article 163(4) of the Constitution against a final decision or judgment of the Court of Appeal. It was held that the jurisdiction cannot be invoked to entertain applications originating from interlocutory rulings, such as those dealing with temporary injunctions or stays of execution and which relate to exercise of discretion of the Court of Appeal. We also note that this decision was rendered in an electoral dispute, whose determination is guided by strict timelines set by the constitution and statute. 44.We seriously doubt that the holding of the Supreme Court referred to in the foregoing paragraph will apply to the interlocutory orders and directions by the ELRC made for case management even if they do not determine the merits of the disputes between parties, in the interim or finality. We have found that such orders and directions are appealable to this Court as of right and not upon leave, pursuant to provisions of section 17 of the ELRC Act which is construed to confer a right to appeal, as of right free from obtaining leave. We have found that in any event, there exist no statutory provision for litigants to seek and obtain such leave. 45.In determining the present preliminary point, we have made a distinction between ELRC orders and directions in case management envisaged in section 3 of the ELRC Act and orders (final or interlocutory) pursuant to section 12(3) of the Act which are in the nature of reliefs that determine merits of the dispute between the parties. However, in the absence of relevant constitutional or statutory provision, the ELRC or this Court will not impose grant of leave prior to appealing against case management orders and directions because such appeal framework simply, does not exist. 46.We have already referred to the overarching application of the Civil Procedure Act and Rules as they apply to enforcement of the judgments, awards, orders or decrees of the ELRC. However, we hold that provisions of section 75 of the Civil Procedure Act and Order 43 of the Civil Procedure Rules cannot apply in guiding the litigants about what orders by the ELRC will be appealable as of right or consequential to leave being obtained. We hold as much because we have not seen a statutory provision that makes section 75 of the Civil Procedure Act and Order 43 of the Civil Procedure Rules applicable in that respect. 47.Specifically turning to the impugned orders and directions in the instant appeal, we reckon that they were made in a constitutional petition for enforcement of rights and constitutional provisions.Sub-rule 10(1) of the ELRC Procedure Rules provides that any person who wishes to institute a petition shall do so in accordance with the Constitution of Kenya (Protection of Rights and Fundamental Freedoms and Enforcement of the Constitution) Practice and Procedure Rules (the Mutunga Rules). We have perused the Rules and they do not expressly invoke the Civil Procedure Act and the Civil Procedure Rules. Accordingly, our conclusion is that section 75 of the Civil Procedure Act and Order 43 of the Civil Procedure Rules are inapplicable in guiding the litigants in that respect. 48.It is apparent that the ELRC Act’s and the Mutunga Rules’ frameworks do not introduce requirement for leave to appeal interlocutory orders including those for directions in case management. There cannot be requirement for such leave in constitutional rights and enforcement matters or, the ELRC matters generally, in the absence of elaborate constitutional and statutory provisions to support such proposition. 49.It is our further view that both the ELRC Act and Procedure Rules as well as the Mutunga Rules prescribe a framework in which interlocutory orders and directions on case management are generally matters of the trial court's judicial discretion that must be exercised fairly. There exists automatic "appeal as of right" for such case management orders or directions and an aggrieved party typically must have complied with the strict provisions of the ELRC Rules and the Mutunga Rules (where the Mutunga Rules govern the proceeding before the ELRC) on pre-trial and case management as a precondition or substantive requirement to succeed in such an appeal. In other words, the pre-trial and case management rules when effectively implemented essentially provide a strict sieve to ensure that this Court is not overwhelmed with unnecessary appeals against orders and directions for case management. 50.Further, absence of a statutory framework for seeking such leave is consistent with the framework in the Mutunga Rules, the ELRC Act and ELRC Procedure Rules all of which focus on the principal objective of just, timely, efficient, proportionate and affordable determination of disputes. We cannot presume that in absence of an express statutory provision, there could exist a requirement for leave against orders and directions given by the ELRC in case management because such presumption would unconstitutionally and unlawfully chain access to justice in disposal of the disputes that come before the ELRC under the ELRC Rules generally or the Mutunga Rules, like in the instant appeal. We have found that there exists no provision for leave to appeal against such orders and directions of the ELRC made pursuant to section 3 of the ELRC Act or proceedings under the Mutunga rules, and, meant for appropriate case management. The making of such orders and directions vest in the judicial discretion of the ELRC exercisable in accordance with the applicable substantive and procedural law. 51.Rule 41 of the Court of Appeal Rules on application for leave to appeal in civil matters states as follows;“(1)In a civil matter —a.where an appeal lies with the leave of the superior court, application for such leave may be made —i.informally at the time when the decision against which it is desired to appeal is given; or,ii.by motion or chamber summons according to the practice of the superior court, within fourteen days of such decision;b.where an appeal lies with the leave of the Court, application for such leave shall be made—i.in the manner laid down in rules 44 and 45 within fourteen days after the decision against which it is desired to appeal; or,ii.where application for leave to appeal has been made to the superior court and refused, within fourteen days after such refusal.2.An application seeking certification that a matter of general public importance is involved shall be made within thirty days after the delivery of the decision.3.Despite subrule (2), an application brought out of time shall be marked as "lodged out of time" under rule 12 with liberty to apply for extension of time.” 52.The rule is elaborate that it can only be invoked where an appeal lies with the leave of the superior court, where an appeal lies with the leave of this Court, or where an applicant is seeking certification that a matter of general public importance is involved. There is no constitutional or statutory provision shown to exist as satisfying any of the three preconditions for invoking application for leave to appeal against the impugned orders subject of the instant appeal. 53.The resultant conclusion is that the appellant has satisfied this Court’s jurisdictional provision in section 3 of the Appellate Jurisdiction Act. The section provides that this Court shall have jurisdiction to hear and determine appeals from the High Court and any other Court or Tribunal prescribed by an Act of Parliament in cases in which an appeal lies to the Court of Appeal under any law. In the instant appeal, we have found that Article 164(3) of theConstitution and section 17 of the ELRC Act prescribe that an appeal like the instant one lies to this Court, as of right. 54.We therefore find that there existed a right of appeal free from applying and obtaining leave to appeal against the orders and directions of the ELRC given on 24th October, 2019. 55.In the premises the preliminary point will fail because the appellant had a right to appeal as of right, leave to appeal was unnecessary, and, this Court has jurisdiction to hear and determine the appeal. 56.Parties will bear own costs of the preliminary issue because the same was urged at the instance of this Court. DATED AND DELIVERED AT NAIROBI THIS 10THDAY OF JULY, 2026.K. M’INOTI..................................JUDGE OF APPEALE. C. MWITA..................................JUDGE OF APPEALB. ONGAYA..................................JUDGE OF APPEALI certify that this is a true copy of the original.SignedDeputy Registrar