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Court of AppealPartially AllowedCivil Appeal No. 287 of 2016 (consolidated with Civil Appeal No. 3 of 2017)

Law Society of Kenya, Nairobi Branch & another v Malindi Law Society & 6 others (Civil Appeal 287 of 2016 & 3 of 2017 (Consolidated)) [2017] KECA 231 (KLR)

Court of Appeal of Kenya
19 October 2017
PWP. N. WakiRNR. N. NambuyeDMD. K. MusingaSKS. Gatembu KairuAMA. K. Murgor
8,882 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~36 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal ruled magistrates' courts can hear land and employment cases, but judges cannot be transferred between the High Court and specialized courts.

What this practically means

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Executive summary

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In these consolidated appeals, the Court of Appeal considered whether Parliament may confer jurisdiction on magistrates' courts over disputes relating to employment and labour relations and the environment and use, occupation of and title to land, or whether such jurisdiction is exclusive to the specialized courts established under Article 162(2) of the Constitution. The appeals challenged a High Court decision (Emukule, Chitembwe, Thande, JJ) which declared Sections of the Statute Law (Miscellaneous Amendments) Act 2015, the Environment and Land Court Act and the Magistrates' Courts Act 2015 unconstitutional and quashed Gazette Notices appointing magistrates to hear environment and land cases. Before the main appeal, the Court dismissed an application to strike out notices of appeal filed by LSK branches, holding that any aggrieved person, association or body has locus standi to appeal. On the merits, the Court held that the restriction in Article 169(1)(d) limits only Parliament's power to establish courts, not to confer jurisdiction on constitutionally established subordinate courts. Applying purposive interpretation and the values of access to justice and devolution, the Court held the specialized courts' jurisdiction is not exclusive, since unlike Article 165(5), Article 169 contains no express exclusion of subordinate courts. However, following the Supreme Court's decision in Republic vs. Karisa Chengo, the Court affirmed that the Chief Justice has no power to transfer judges between the High Court and the specialized courts. The appeal partially succeeded: the declarations of unconstitutionality and the certiorari orders were set aside, but the High Court's ruling on judicial transfers was affirmed. Each party was ordered to bear its own costs of the appeal.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the impugned notices of appeal are competent, that is, whether the LSK branches have locus standi to challenge the impugned judgment on appeal
  2. 2.Whether the specialized courts established under Article 162(2) of the Constitution have exclusive jurisdiction over disputes relating to employment and labour relations and environment and land, to the exclusion of magistrates' courts
  3. 3.Whether Parliament can confer, by legislation, jurisdiction on magistrates' courts to hear and determine disputes relating to employment and labour relations and the environment and the use and occupation of, and title to, land
  4. 4.Whether the Chief Justice has power to transfer judges from the High Court to the specialized courts and vice versa

Key legal issues

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01

Whether Article 169(1)(d) bars Parliament from conferring jurisdiction on magistrates' courts over disputes within the specialized courts' mandate

Holding

It does not. The restriction in Article 169(1)(d) applies only to the establishment of a fourth category of subordinate courts, not to conferring jurisdiction on magistrates' courts established under Article 169(1)(a)

Reasoning

Article 169 identifies four categories of subordinate courts. The exclusionary phrase 'other than the courts established as required by Article 162(2)' qualifies only the fourth category - courts established by Act of Parliament. It does not limit Parliament's separate power under Article 169(2) to confer jurisdiction, functions and powers on courts already established under Article 169(1)(a), (b) and (c). Parliament therefore acted intra vires in enacting the Magistrates' Courts Act and the amendments to the ELC Act and related statutes.

p. 14
02

Whether the specialized courts have exclusive jurisdiction over employment and labour, environment and land disputes

Holding

No. The mandate to establish courts under Article 162(2) does not confer exclusive jurisdiction; unlike Article 165(5), which expressly bars the High Court, Article 169 contains no express exclusion of subordinate courts

Reasoning

The court contrasted the language of Article 165(5) ('reserved for the exclusive jurisdiction' and 'falling within the jurisdiction') with Article 169, which contains no express bar. Purposive interpretation, access to justice under Articles 6(3) and 48, public interest, and the fact that appeals from magistrates' courts lie to the specialized courts (which imprint specialized jurisprudence through precedent) all support non-exclusive jurisdiction. Conferring jurisdiction on magistrates' courts does not diminish the specialization of the specialized courts.

p. 17
03

Whether the Chief Justice may transfer judges between the High Court and the specialized courts

Holding

No. The Supreme Court's decision in Republic vs. Karisa Chengo conclusively settled that judges of the High Court and specialized courts exercise different jurisdictions and cannot be administratively transferred between them

Reasoning

Following the Supreme Court in Karisa Chengo, although the High Court and the specialized courts are of equal status, they are different courts whose judges exercise varying jurisdictions limited to the matters provided in their respective statutes. A judge undertakes stewardship of the particular office in respect of which he or she takes the oath. The High Court was therefore correct in annulling the provisions purporting to confer transfer powers on the Chief Justice.

p. 17
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Locus standi of the LSK branches to file notices of appeal

Holding

The branches have locus standi. Rule 75 speaks of 'any person who desires to appeal', and Articles 22, 258 and 260 confer standing on aggrieved persons including unincorporated associations

Reasoning

The branches are statutory bodies created under section 24 of the LSK Act and are autonomous in their sphere. Article 260 defines 'person' to include unincorporated associations; Articles 22(1) and 258(1) grant rights of access to courts. Rule 75(1) refers to 'any person who desires to appeal', not only parties below. The branches asserted they were aggrieved as the decision impacted their members' legal practice, which sufficed.

p. 8

Legal principles established

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  • Article 169(1)(d) restricts only Parliament's power to establish new courts, not its power to confer jurisdiction on constitutionally established subordinate courts such as magistrates' courts
  • The specialized courts under Article 162(2) do not have exclusive jurisdiction over employment and labour relations and environment and land disputes; Parliament may confer jurisdiction over such disputes on magistrates' courts
  • Parliament cannot establish a superior court or confer superior court jurisdiction over employment and labour relations and environment and land matters outside the specialized courts
  • A judge appointed to a specialized court cannot be administratively transferred to the High Court and vice versa
  • Locus standi to institute appellate proceedings is available to any aggrieved person, association or body, whether incorporated or not

Court orders

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  1. 1.The judgment and order of the High Court declaring Section 2 of the Statute Law (Miscellaneous Amendments) Act 2015; Sections 7(3), 8(d) and 26(3) and (4) of the ELC Act; Sections 9(a) and (b) of the Magistrates Court Act, 2015 unconstitutional, null and void is set aside
  2. 2.The order of certiorari issued by the High Court quashing Gazette Notice Numbers 1472 dated 1st March 2016 and 1745 dated 14th March 2016 is set aside
  3. 3.Each party shall bear its own costs of the appeal
  4. 4.The application to strike out the notices of appeal filed by the LSK branches is dismissed

The bench

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One judgment of the whole court — no separate or dissenting opinions.

PW
majority

Wrote the judgment

RN
majority

Wrote the judgment

DM
majority

Wrote the judgment

SK
majority

Wrote the judgment

AM
majority

Wrote the judgment

On appeal from
High Court of Kenya at Malindi
Constitutional Petition Number 3 of 2016
Jurisdiction invoked
First appellate jurisdiction under the Constitution over appeals from the High Court exercising constitutional (Article 165) jurisdiction; appeals filed under Rule 75 of the Court of Appeal Rules
Consolidated with
Civil Appeal No. 3 of 2017

Relief refused

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Application to strike out the notices of appeal filed by the respondent LSK branches

The branches are autonomous and, as aggrieved persons, have locus standi to appeal

p. 8

Challenge to the High Court's holding that the Chief Justice cannot transfer judges between the High Court and the specialized courts

The issue was conclusively settled by the Supreme Court in Republic vs. Karisa Chengo; the High Court was right on that point

p. 17

Costs

Each party shall bear its own costs of the appeal.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The judgment and order of the High Court declaring Section 2 of the Statute Law (Miscellaneous Amendments) Act 2015; Sections 7(3), 8(d) and 26(3) and (4) of the ELC Act; Sections 9(a) and (b) of the Magistrates Court Act, 2015 as unconstitutional, null and void is hereby set aside.
p. 17Final orders - setting aside the declaration of unconstitutionality
The order of certiorari issued by the High Court quashing Gazette Notice Numbers 1472 dated 1st March 2016 published on 11th March 2016 and 1745 dated 14th March 2016 published on 18th March 2016 is hereby set aside.
p. 18Final orders - setting aside certiorari quashing the Gazette Notices
Each party shall bear its own costs of the appeal.
p. 18Costs order
Whereas Parliament is empowered to enact legislation to confer jurisdiction to the Magistrate?s courts to hear and determine disputes stipulated under Article 162 (2) of the Constitution, it cannot establish a Superior Court or confer upon a Superior Court jurisdiction to hear employment and labour relations cases and environment and land cases.
p. 17Scope of Parliament's power to confer jurisdiction
It follows that a judge appointed to serve in the specialized courts cannot administratively be transferred to serve in the High Court and vice versa.
p. 17No transfer of judges between High Court and specialized courts
a person, association, body corporate or an unincorporated body, have the locus standi, not only to institute original proceedings but also appellate proceedings provided that such a party is aggrieved by the decision intended to be challenged.
p. 8Locus standi of aggrieved persons on appeal

Issues in the judgment

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minor

The judgment records the High Court as striking down 'Section 26(3) and (4)' of the ELC Act, but paragraph 2 quotes the High Court decree only in respect of Section 2 of the Statute Law (Miscellaneous Amendments) Act, and paragraph 9 alternately refers to Sections 26(3) and (4) - a minor internal inconsistency in the enumeration of the impugned provisions

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Law Society of Kenya, Nairobi Branch & another v Malindi Law Society & 6 others (Civil Appeal 287 of 2016 & 3 of 2017 (Consolidated)) [2017] KECA 231 (KLR)", Case Analysis (2017). Civil Appeal No. 287 of 2016 (consolidated with Civil Appeal No. 3 of 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/231/eng@2017-10-19

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.