JOEL KANDIE CHEBII V REGISTRAR OF TRADE UNIONS [2012] KEELRC 37 (KLR)
The bottom line
#Kenya's Industrial Court confirmed it alone decides employment and trade union disputes, dismissing an attempt to move a union election case out of it.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Industrial Court currently constituted has jurisdiction to entertain this matter
- 2.Whether the issues raised herein are res judicata having been argued and determined in Industrial Court Cause No.3N/2010 and JR 327/2010
- 3.Whether the petitioners are in contempt of court having proceeded to hold elections on 30th January, 2011
- 4.Whether the application is defective having been filed without following the due process as provided by law
Key legal issues
#Jurisdiction of the Industrial Court as constituted under the 2010 Constitution
The Industrial Court has exclusive jurisdiction over disputes relating to employment and labour relations, including the present dispute over trade union elections and deregistration of officials; the preliminary objection on jurisdiction fails.
Article 162(2) directs Parliament to establish courts with the status of the High Court for employment and labour relations. The Industrial Court Act, 2011, Section 12, confers exclusive original and appellate jurisdiction, and Section 33(4) of the Labour Relations Act allows election disputes to be referred to the Industrial Court. Judges of the Industrial Court are appointed under Article 162 as judges of superior courts and can determine rights issues relating to employment and labour. Githua J had already transferred the matter here.
Res judicata
The petition is not res judicata; the earlier decisions concerned the 2009 election and the orders expired, while the present matter concerns the Registrar's threatened deregistration of officials elected on 30th January 2011.
Industrial Cause 3N/2010 and JR 327/2010 concerned the December 2009 meeting and the annulment of the election it produced. The orders made expired on 30th/31st December 2011 and Githua J and Korir J declined to issue certiorari because the orders were spent. The current challenge targets different orders directed at the Registrar of Trade Unions regarding the 2011 officials. Though the same parties are involved, the issues are substantially different.
Contempt of court
The petitioners are not in contempt; no subsisting court order was flouted when the January 2011 elections were held.
The orders in 3N/2010 extending the chairman's tenure expired on 31st December 2011 (and the leave/stay orders were not indefinite). The judges in JR 327/2010 had held the orders were spent and courts do not issue orders in vain. Elections held on 30th January 2011 therefore flouted no order, and the January 2011 elections have not been challenged in any court.
Procedural defect under Order 53 rule 4(1)
Non-compliance with Order 53 is not fatal; the point involves factual ascertainment and cannot succeed as a preliminary objection, and Article 159(2) forbids striking out on such technicality.
Rule 3 of Order 53 permits adjournment for service rather than dismissal. Article 159(2) requires justice without undue regard to procedural technicalities, so striking out for failure to serve would breach it. Further, whether service occurred is a matter of evidence unsuitable for a preliminary objection under the Mukisa Biscuit threshold, as are grounds 3 and 4 which are not pure points of law.
Legal principles established
#- The Industrial Court established under Article 162(2) and the Industrial Court Act, 2011 has exclusive original and appellate jurisdiction over employment and labour relations disputes, and the High Court cannot exercise supervisory jurisdiction over it.
- A preliminary objection must be a pure point of law; it cannot be raised where any fact has to be ascertained.
- Courts do not issue orders in vain; orders that are spent or incapable of enforcement will not be quashed by certiorari.
- Failure to follow Order 53 procedural requirements for judicial review is not necessarily fatal, in light of Article 159(2) on procedural technicalities.
Court orders
#- 1.Preliminary Objection dismissed
- 2.Costs of the Preliminary Objection to the Petitioner and the 2nd to 18th Interested Parties
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 162(2) of the Constitution; Section 12 of the Industrial Court Act, 2011; Section 33(4) of the Labour Relations Act (matter transferred from the High Court by Githua J)
Relief refused
#Striking out of the Notice of Motion dated 6th July 2012 on ground of lack of jurisdiction of the Industrial Court
The Industrial Court has exclusive jurisdiction over employment and labour relations disputes under Article 162(2) and Section 12 of the Industrial Court Act, 2011
Striking out of the motion as res judicata
The issues before the court concern deregistration of officials elected in January 2011, not the 2009 election litigated in Cause 3N/2010 and JR 327/2010
Finding of contempt against the petitioners
At the time of the January 2011 elections the orders in 3N/2010 had expired and there was no subsisting court order being flouted
Striking out of the motion as incurably defective under Order 53 rule 4(1)
Rule 3 does not render non-compliance fatal, and Article 159(2) requires justice without undue regard to procedural technicalities; the point also involved matters of evidence unsuitable for a preliminary objection
Costs
Preliminary Objection dismissed with costs to the Petitioner and the 2nd to 18th Interested Parties
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Having said this, I find that this court has jurisdiction to entertain this matter and the Preliminary Objection in relation to this court's jurisdiction lacks Mont.
The issues herein are substantially different though relating to the same parties and I find that the application is not res judicata.
As a general rule, courts of law do not issue orders in vain or orders which are incapable of enforcement
Justice shall be administered to all without undue regard to procedural technicalities
I find that Preliminary Objection argued by the applicants herein lacks merit and the same is dismissed with costs to the Petitioner and the 2nd to 18th Interested Parties.
Issues in the judgment
#Internal inconsistency in dates of the January 2011 elections - the issues for determination refer to elections held on 30th January, 2012 while the submissions and findings throughout refer to 30th January, 2011
Case number cited inconsistently - the matter is described both as JR Misc. App No. 327/201 and JR 327/2010, and the judgment in it is referred to as JR 327/2011
Possible transcription error in the disposition - 'lacks Mont' likely intended as 'lacks merit'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "JOEL KANDIE CHEBII V REGISTRAR OF TRADE UNIONS [2012] KEELRC 37 (KLR)", Case Analysis (2012). Industrial Cause No. 3(N) of 2010 (JR Misc. App. No. 327/2010 transferred from Milimani High Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2012/37/eng@2012-12-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.