Nalin Nail Works v Industrial Court & another [2013] KEELRC 976 (KLR)
The bottom line
#The High Court upheld an Industrial Court award against a company in receivership, confirming the tribunal's constitutionality and limiting challenges to its decisions.
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- 1.Whether the establishment of the Industrial Court under Section 14 of the Trade Disputes Act (repealed) was unconstitutional as inconsistent with Section 65(1) of the former Constitution
- 2.Whether Section 17 of the Trade Disputes Act (repealed), ousting judicial review of Industrial Court awards, was unconstitutional as inconsistent with Section 65(2) of the former Constitution
- 3.Whether the Industrial Court's award in Industrial Cause No. 79 of 2002 was ultra vires for taking into account undomesticated ILO Conventions and disregarding Section 311 of the Companies Act
Key legal issues
#Constitutionality of the Industrial Court's establishment under Section 14 of the Trade Disputes Act
The establishment was constitutional; the delegatus non potest delegare maxim did not apply because Section 123 of the old Constitution did not restrict Parliament
The court held Section 123 of the old Constitution authorized Parliament to establish subordinate courts without limiting Parliament's power to provide in legislation for establishment by another body. The Industrial Court was a special quasi-judicial tribunal dealing only with trade disputes reported through the Minister for Labour, which explains why it was not mentioned in the old Constitution or the Judicature Act.
Constitutionality of Section 17 of the Trade Disputes Act ousting judicial review
Section 17 was constitutional; Parliament could make Industrial Court decisions final given the tribunal's appellate/supervisory character
The Industrial Court did not exercise original jurisdiction; disputes were reported to the Minister and only referred to the court after conciliation failed, and other cases were appeals. This context explains Parliament's decision to make its awards final, similar to limits on High Court intervention under the Arbitration Act.
Whether the Industrial Court award was ultra vires for considering undomesticated ILO Conventions and disregarding Section 311 of the Companies Act
The award was not ultra vires; the basis of the decision was domestic law, with international material merely persuasive
The reviewing court read the award and found its basis was the conflict between labour legislation enacted after the Companies Act, the express privilege for wages under the Companies Act, and the ex-gratia transport payment agreement. The court did not apply the Cockar Task Force recommendations or undomesticated treaties; comparative material was persuasive only.
Legal principles established
#- Section 123 of the former Constitution did not bar Parliament from providing in legislation for establishment of a court by a body other than itself
- The Industrial Court established under the Trade Disputes Act was a special quasi-judicial tribunal, not a court in the strict sense
- Section 17 of the Trade Disputes Act ousting judicial review of awards was constitutional
- Reference to undomesticated international conventions does not invalidate a decision where the basis of the decision rests on domestic law
Court orders
#- 1.The Notice of Motion dated 21st February 2005 is dismissed
- 2.Costs of the application awarded to the respondent/interested party
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Judicial review jurisdiction under the Law Reform Act and Order 53 Civil Procedure Rules; transferred following reconstitution of the Industrial Court under Article 162(2) of the Constitution of Kenya 2010 and the Industrial Court Act 2011
Relief refused
#Order of certiorari to quash the award and amended award in Industrial Court Cause No. 79 of 2002
The Industrial Court's establishment and Section 17 of the Trade Disputes Act were constitutional, and the award was not ultra vires
Order of prohibition restraining the Industrial Court from acting on the award
The judicial review application failed on all grounds
Costs
The Notice of Motion is dismissed with costs to the respondent/interested party
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.
I find that the establishment of the Industrial Court under the Section 14 of the Trade Disputes Act was not unconstitutional and further that section 123 of the Old constitution did not apply to the Industrial Court.
I therefore find that section 17 of the Trade Disputes Act (repealed) as it then was, was not unconstitutional.
The court did not apply the propositions in the Cocker Report, nor any treaties and conventions that have not been domesticated by Kenya.
The upshot is that the Notice of Motion is dismissed with costs.
Issues in the judgment
#Judgment contains numerous typographical errors, e.g. 'delegatus non protest delegate' for 'delegatus non potest delegare' and 'Decembr' for 'December'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nalin Nail Works v Industrial Court & another [2013] KEELRC 976 (KLR)", Case Analysis (2013). Judicial Review Application (originally Nairobi High Court Civil Application No. 134 of 2005). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/976/eng@2013-10-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.