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Case Brief · caselaw.co.ke
Court of AppealDismissedCivil Appeal No. 281 of 2014

Universities Academic Staff Union v Kenyatta University & another [2017] KECA 707 (KLR)

Court of Appeal
3 March 2017
8,179 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~33 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed the High Court could quash an old Industrial Court award because it exceeded its legal powers on university finances.

What this practically means

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Executive summary

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This appeal arose from Kenyatta University's Self-Sponsored Students Programme, from which the university paid service providers 14.3% of generated income instead of the 35% recommended by successive internal committees. After industrial action, the Minister for Labour referred the dispute to the Industrial Court, which on 8th March 2007 ordered the university to pay 35% to service providers, open a separate account, and manage the programme through the Kenyatta University Enterprise & Services Board. Ngugi J. quashed that award by certiorari, holding the Industrial Court was a subordinate court amenable to the High Court's supervisory jurisdiction and had exceeded jurisdiction. The union appealed, arguing section 17 of the repealed Trade Disputes Act made awards final and unreviewable, and that post-2010 proceedings should have gone to the Employment and Labour Relations Court. The Court of Appeal held that the Industrial Court under the Trade Disputes Act was a subordinate court subject to the High Court's supervisory jurisdiction, whether created directly by statute or by presidential order under statutory powers, and that ouster clauses in ordinary statutes cannot displace constitutional supervisory jurisdiction. Section 22 of the Sixth Schedule validly allowed the High Court to continue hearing the pending application. Although the Court disagreed with the High Court that the dispute was not a trade dispute, it affirmed the quashing of the award because the Industrial Court had acted ultra vires the Kenyatta University Act: it usurped the Council's statutory financial management role, directed the university to borrow, ordered a non-existent body to manage funds, and was unduly influenced by other universities' practices. The appeal was dismissed with each party bearing its own costs.

Questions the Court framed

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

  1. 1.Whether the Industrial Court as established by the repealed Trade Disputes Act was a subordinate court amenable to the supervisory jurisdiction of the High Court
  2. 2.If so, whether there were grounds to justify review of the Industrial Court's award by the High Court
  3. 3.Whether the High Court erred in hearing and determining the judicial review application after the promulgation of the Constitution of Kenya, 2010 instead of transferring it to the Employment and Labour Relations Court
  4. 4.Whether the dispute before the Industrial Court was a trade dispute within the meaning of section 2 of the Trade Disputes Act
  5. 5.Whether the Industrial Court acted ultra vires in making its award

Key legal issues

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01

Status of the Industrial Court under the Trade Disputes Act vis-à-vis the High Court

Holding

The Industrial Court was a subordinate court amenable to the High Court's supervisory jurisdiction because it was created pursuant to powers donated by an Act of Parliament, and the former Constitution empowered Parliament to establish only courts subordinate to the High Court

Reasoning

The court read sections 60(1), 65(1) and 123 of the former Constitution together with the Trade Disputes Act. Since the Industrial Court was created under a statute (whether directly or by presidential order under statutory powers) and the Constitution allowed Parliament to establish only subordinate courts, the court fell under the High Court's supervisory jurisdiction. The court rejected the view that the Industrial Court was a presidential prerogative creation outside the judiciary, noting that courts not subject to supervision were only ever created expressly by the Constitution itself.

p. 10
02

Whether pending proceedings could be heard by the High Court after promulgation of the 2010 Constitution

Holding

Section 22 of the Sixth Schedule permitted the High Court to continue hearing the pending judicial review application; Ngugi J. did not err

Reasoning

The schedules are part of the Constitution, which must be interpreted purposively, broadly, holistically and as one whole. Section 22 of the Sixth Schedule gave three valid routes for pending proceedings, one of which was continuation before the court where they were pending. The judicial review application, filed on 25th April 2007, was pending before the High Court at promulgation, so the High Court retained jurisdiction to determine it.

p. 10
03

Whether the dispute was a trade dispute under section 2 of the Trade Disputes Act

Holding

Yes; the dispute over remuneration for teaching the SSSP programme fell within the broad statutory definition

Reasoning

The court disagreed with Ngugi J. on this point. The definition in section 2 covers disputes connected with employment or the terms of employment or conditions of labour, and includes even apprehended trade disputes. The disagreement over 35% versus approximately 14% of SSSP income concerned terms of employment, and the parties' own conduct - allowing the Minister to appoint an investigator and refer the matter to the Industrial Court - showed they treated it as a trade dispute.

p. 11
04

Whether the Industrial Court acted ultra vires in making its award

Holding

Yes; the award usurped the Council's statutory financial management role under the Kenyatta University Act, ordered compliance by a non-existent body, and breached express statutory duties

Reasoning

The Kenyatta University Act vested financial management in the University Council, obliged it to administer funds in the University's best interest, and barred expenditure outside approved estimates. The Industrial Court ignored these provisions, directed the University to borrow, ordered a non-existent Enterprise & Services Board to manage funds, and required a separate account and quarterly reports contrary to statute. It was also unduly influenced by practices in other, differently constituted universities. Such micromanagement was ultra vires, justifying the High Court's certiorari.

p. 12

Legal principles established

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  • The Industrial Court established under the repealed Trade Disputes Act was a subordinate court subject to the supervisory jurisdiction of the High Court under the former Constitution
  • Juridically it makes no difference whether a court is created directly by an Act of Parliament or by an order of the President pursuant to powers donated by an Act of Parliament; in both cases it is created pursuant to an Act of Parliament
  • Where a statute confers a power to make a decision on a body, it is for that body, acting within its mandate, rather than the court, to make the decision, especially where the court lacks expertise
  • A court order that is intra vires cannot require a party to act in a manner that violates the law or undermines the party's legal obligations
  • Where the Industrial Court acted in excess of jurisdiction, judicial review lies within the civil jurisdiction of the High Court
  • Under section 22 of the Sixth Schedule to the Constitution, proceedings pending before a court at promulgation could continue before that court, be heard by a corresponding new court, or be heard as directed by the Chief Justice or Registrar

Court orders

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  1. 1.The appeal is dismissed
  2. 2.Each party to bear its own costs

The bench

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

majority
William Ouko
W. OukoJA
Currently serving
majority
majority
On appeal from
High Court of Kenya at Nairobi
HC Misc. C.A. No. 430 of 2007
Jurisdiction invoked
First appeal from the High Court exercising supervisory jurisdiction over a subordinate court under section 65(2) of the former Constitution; appeal to the Court of Appeal under ordinary appellate jurisdiction

Relief refused

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Setting aside the High Court's orders quashing the Industrial Court award and restoring the award

The Industrial Court under the Trade Disputes Act was a subordinate court amenable to the High Court's supervisory jurisdiction, and it acted ultra vires the Kenyatta University Act in making the award

p. 12

Costs

Each party to bear its own costs

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.

We have come to the conclusion that the Industrial Court as established by the Trade Disputes Act was a subordinate court amenable to the supervisory jurisdiction of the High Court, that in making its award dated 25th April 2007 the Industrial Court acted ultra vires, and that the High Court did not err in quashing that award. Accordingly this appeal stands dismissed. Granted the nature of the dispute that gave rise to the appeal, we direct each party to bear its own costs. It is so ordered.
p. 12Final orders and disposition
A careful consideration of sections 60(1), 65(1) and 123 against the Trade Disputes Act impels us to conclude that the Industrial Court created by the latter Act was a subordinate court and therefore subjectto the supervisory jurisdiction of the High Court.
p. 10Supervisory jurisdiction over the Industrial Court
In our view, juridically it makes no difference whether the Industrial Court was created directly by an Act of Parliament or by an order of the President pursuant to powers donated by an Act of Parliament. In both cases, the court is pure and simple, created pursuant to an Act of Parliament.
p. 9Statutory creation of courts versus presidential prerogative
Surely a court order that is intra vires cannot require a party to act in a manner that violates the law or otherwise undermines the party's legal obligations.
p. 12Limits of judicial orders
No university could therefore be directed to manage its financial resources in a particular manner merely because another university was doing so.
p. 12Autonomy of statutory institutions
The schedules are part and parcel of the Constitution and the Constitution must be interpreted purposively, broadly, holistically and as one whole so as to achieve harmony of all its provisions.
p. 10Constitutional interpretation

Issues in the judgment

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minor

The date of the High Court judgment is stated inconsistently within the judgment - the headnote says 3rd October 2012 while the body says 2nd October 2012

minor

The award of the Industrial Court is referred to in the conclusion as 'dated 25th April 2007' although 25th April 2007 is elsewhere stated as the date the judicial review proceedings were filed, and the award was delivered on 8th March 2007

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Universities Academic Staff Union v Kenyatta University & another [2017] KECA 707 (KLR)", Case Analysis (2017). Civil Appeal No. 281 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/707/eng@2017-03-03

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