Jagani & 3 others v Industrial Court of Kenya; Bakery, Confectionery, Food Manufacturing and Allied Workers’ Union (K) (Interested Party) (Miscellaneous Application 39 of 2012) [2023] KEELRC 2999 (KLR)
The bottom line
#Kenya's employment court quashed 2009 ex parte Industrial Court orders, confirming tribunals cannot grant final relief without hearing the other side.
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 court has jurisdiction to entertain the matter, i.e. whether the High Court (and now the Employment and Labour Relations Court) had supervisory jurisdiction over the Industrial Court at the time of filing
- 2.Whether the Applicants are entitled to orders of certiorari and prohibition, i.e. whether the Industrial Court's decisions were tainted with illegality, irrationality and procedural impropriety
Key legal issues
#Supervisory jurisdiction over the Industrial Court
At the time of filing, the High Court had jurisdiction to entertain an application for certiorari and prohibition against the Industrial Court, which was then subordinate to the High Court; the court therefore had jurisdiction to hear and determine the matter.
The court relied on section 65(2) of the repealed Constitution and Kenya Airlines Ltd v Kalpa, holding the Industrial Court subordinate to the High Court. Considering Article 162 of the 2010 Constitution, the court held it now had jurisdiction to determine such matters, though noting the Industrial Court's successor, the ELRC, now has equal status with the High Court, rendering the exercise academic.
Whether the Industrial Court's orders were tainted with illegality, irrationality or procedural impropriety
Although the Industrial Court had jurisdiction over the trade dispute, the ex parte orders of 29th June 2009 were final, far-reaching and granted without hearing the Applicants, and were therefore irrational and unreasonable, warranting certiorari.
Applying the Pastoli v Kabale guidelines, the court found that while the Industrial Court had jurisdiction (the dispute fell within section 2 of the Trade Disputes Act), the ex parte orders tantamount to final relief without a hearing amounted to procedural impropriety and irrationality. However, the underlying proceedings were not exhibited, so findings of irrationality based on lack of evidence could not be made.
Whether the Industrial Court had jurisdiction over the dismissal dispute
The court held the Industrial Court had jurisdiction, as the dispute fell within the statutory definition of a trade dispute under section 2 of the Trade Disputes Act.
The Applicants argued the Industrial Court lacked jurisdiction because the memorandum of claim concerned lockout while the orders concerned dismissal of 24 employees. The court applied the wide definition of trade dispute in section 2 of the Trade Disputes Act, which expressly includes disputes regarding dismissal of employees, and concluded the matter fell within the Respondent's jurisdiction under section 14(1).
Legal principles established
#- Under the repealed Constitution the Industrial Court was subordinate to the High Court and subject to its supervisory jurisdiction by way of judicial review, but following Article 162 of the Constitution of Kenya 2010 the Employment and Labour Relations Court is a court of equal status with the High Court.
- To succeed in judicial review, an applicant must show the decision is tainted with illegality, irrationality or procedural impropriety.
- Where an ex parte order is final in nature and tantamount to granting the substantive relief, granted without hearing the other party, it is irrational and unreasonable.
Court orders
#- 1.The applicant's application dated 17th July 2009 is found merited and is granted, quashing the impugned orders of the Industrial Court
- 2.Each party to bear their own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Section 65(2) of the repealed Constitution of Kenya; Articles 162(1) and 162(2)(a) of the Constitution of Kenya, 2010
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.
As earlier said for academic exercise the applicant's application dated 17th July 2009 is found merited and is granted.
The parties will meet their respective costs of the suit.
The Industrial Court granted the Interested Party ex parte orders which were tantamount to making the main suit nugatory as they were final in nature. This was done without hearing the Applicants' case therein and therefore the same was irrational and unreasonable.
Under the Repealed Constitution, the Industrial Court was subordinate to the High Court and was therefore subject to supervisory jurisdiction of the High Court by the way of judicial review.
Issues in the judgment
#The judgment purports to be a ruling/judgment but is internally inconsistent in parts - it acknowledges the orders were overtaken by events and the parties had compromised the applications, yet grants them anyway.
The judgment does not set out the names of the individual ex-parte applicants or identify the quashed orders' case numbers precisely in the disposition, despite extensive recital of the reliefs sought.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jagani & 3 others v Industrial Court of Kenya; Bakery, Confectionery, Food Manufacturing and Allied Workers’ Union (K) (Interested Party) (Miscellaneous Application 39 of 2012) [2023] KEELRC 2999 (KLR)", Case Analysis (2023). Miscellaneous Application 429 of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2999/eng@2023-11-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.