[2007] KEHC 778 (KLR)
The High Court held that while section 17 of the Trade Disputes Act attempts to oust its jurisdiction, such ouster does not apply where the Industrial Court acts outside its statutory jurisdiction. The court found that its supervisory jurisdiction could be invoked if the Industrial Court entertained matters not...
Source-derived case information.
- Citation
- [2007] KEHC 778 (KLR)
- Parties
- Applicant: Karuri Town Council; Respondent: The Industrial Court of Kenya; Respondent: Kenya Local Government Workers Union
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 1037 of 2007
- Procedural Posture
- Miscellaneous Application / Ruling on Leave to Apply for Judicial Review and Stay
- Outcome
- Leave to apply for judicial review granted; stay declined.
- Legal Topics
- Judicial Review, Trade Disputes, Industrial Court Jurisdiction, Supervisory Jurisdiction, Ouster Clauses
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Karuri Town Council
Applicant
The Industrial Court of Kenya
Respondent
Kenya Local Government Workers Union
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Leave to Apply for Judicial Review and Stay
Legal Issues
- 1 Whether the High Court has jurisdiction to review decisions of the Industrial Court in trade disputes.
- 2 Whether section 17 of the Trade Disputes Act ousts the High Court's supervisory jurisdiction.
- 3 Whether the subject matter is outside the definition of a trade dispute, thus rendering the Industrial Court's award a nullity.
Ratio Decidendi
The High Court held that while section 17 of the Trade Disputes Act attempts to oust its jurisdiction, such ouster does not apply where the Industrial Court acts outside its statutory jurisdiction. The court found that its supervisory jurisdiction could be invoked if the Industrial Court entertained matters not constituting a trade dispute. However, in this case, the applicant failed to demonstrate prima facie that the subject matter was not a trade dispute. Consequently, the court granted leave to apply for judicial review but declined to order that such leave operate as a stay of the Industrial Court's award, as the threshold for intervention had not been met.
Court Disposition
Leave to apply for judicial review granted; stay declined.
Orders
- Leave to apply for judicial review is granted.
- Leave granted does not operate as a stay of the Industrial Court's award.
Full Case Text
Judgment text and source record
28 paragraphs
JUDICIAL REVIEW
1. Industrial Court subordinate to the High Court
2. High Court cannot assume jurisdiction of a trade dispute or an award on it – s 65(1) of the Constitution
3. Where the Industrial Court has no jurisdiction High Court has a supervisory role and it can intervene notwithstanding s 17 of the Trade Disputes Act. Once a nullity always a nullity.
4. Leave to challenge an award given but stay declined for the above reasons.
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MISCELLANEOUS CIVIL APPLICATION NO. 1037 OF 2007
IN THE MATTER OF AN APPLICATION BY KARURI TOWN COUNCIL FOR LEAVE TO APPLY FOR JUDICIAL REVIEW ORDER OF CERTIORARI AND PROHIBITION
AND
IN THE MATTER OF THE TRADE DISPUTES ACT CAP 234, EMPLOYMENT ACT CAP 226 AND THE LOCAL GOVERNMENT ACT CAP 265 LAWS OF KENYA
AND
IN THE MATTER OF AN AWARD BY THE INDUSTRIAL COURT, NAIROBI IN RESPECT OF CAUSE NO. 80 OF 2006 KENYA LOCAL GOVERNMENT WORKERS UNION VS KARURI TOWN COUNCIL
BETWEEN
KARURI TOWN COUNCIL ................................................................... APPLICANT
AND
THE INDUSTRIAL COURT OF KENYA ........................................ 1ST RESPONDENT
KENYA LOCAL GOVERNMENT WORKERSUNION ................. 2ND RESPONDENT
RULING
While I agree that there are issues for contest I am unable to fully accept that this court has jurisdiction for the following reasons:
S 65(2) gives this court supervisory jurisdiction over subordinate courts in civil and criminal matters.
On the other hand s 65(1) of the Constitution and the Trade Disputes Act confers on the Industrial court what appears to be a special jurisdiction in industrial disputes. Going by the definition of Industrial disputes in the definition section of the Trade Disputes Act trade disputes are neither civil nor criminal.
Section 17 of the Trade Disputes Act purports to oust this court’s judicial review jurisdiction but in a fitting case if the Industrial Court were to take up a matter that is outside the definition of a Trade Dispute as defined, in retrospect, I am of the view that this court if moved would be entitled to invoke its supervisory jurisdiction and section 17 of the Trade Disputes Act would not in my view, prevent the court from assuming jurisdiction because in that event the Industrial Court would be said to have had no jurisdiction ab initio.
However in this case it has not been demonstrated on a prima facie basis that the subject matter is not a trade dispute.
For the above reasons I grant leave as prayed but decline to order that leave granted operates stay for the reasons outlined above. Application for Judicial Review to be filed within the prescribed time as per the rules and served within 8 days failing which the order granted here shall automatically lapse.
DATED and delivered at Nairobi this 20th September, 2007.
J.G. NYAMU
JUDGE