Mwangi & 183 others v Kenya Shell Ltd (Cause 752 of 2011) [2011] KEIC 1 (KLR)
The bottom line
#Kenya's Industrial Court confirmed it alone decides employment disputes, but employees must first ask the High Court to lift an earlier order blocking their case.
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 has jurisdiction to hear this employment dispute and to determine its own jurisdiction notwithstanding the High Court judicial review proceedings
- 2.Whether the Industrial Court as constituted is the court contemplated under Article 162(2) of the Constitution
- 3.Whether the court has power to vacate the High Court order staying/prohibiting proceedings in this matter
- 4.Whether the intended sale of the respondent's business affects the claimants' rights as employees
Key legal issues
#Jurisdiction of the Industrial Court post-2010 Constitution
The Industrial Court, as reconstituted under the Industrial Court Act 2011, is the court contemplated by Article 162(2) of the Constitution and has exclusive jurisdiction over labour disputes; the High Court has no supervisory jurisdiction over it and cannot entertain matters within its jurisdiction under Article 165(2)
The court relied on section 22 of the Sixth Schedule which preserves jurisdiction pending establishment of the Article 162(2) court, and on section 32 of the Industrial Court Act 2011 whose transition clauses deemed the existing court and its judges and staff to be continued under the new Act. It endorsed Musinga J's ruling in Petition No. 573 of 2009 and held that any dissatisfaction lies by appeal to the Court of Appeal, not by judicial review in the High Court.
Whether the intended sale of the respondent's business engages the claimants' employment rights
The respondent cannot divorce itself from its shareholders; the claimants' rights as employees are at the heart of the proposed transaction and the dispute is a labour dispute within the court's jurisdiction
The court rejected the argument that the sale by shareholders does not affect the respondent. The respondent contracts with employees on behalf of its shareholders and is arranging the sale on their behalf. Employees are entitled to know the identity of the new employer, whether to continue serving, and who will settle accrued rights. The dispute therefore flows from the employment contracts and is a labour dispute.
Power to vacate the High Court order
Although the court has jurisdiction to hear the case, it cannot vacate the High Court order prohibiting proceedings, which remains valid until vacated by the High Court
The order was made prior to the promulgation of the new Constitution and the enactment of the Industrial Court Act 2011. The court expressed hope that the parties would petition the High Court to vacate its orders so that the dispute could be heard as prescribed by the Constitution and the new Act.
Legal principles established
#- The Industrial Court has exclusive jurisdiction over labour disputes, and a respondent cannot oust that jurisdiction by resort to the High Court by way of judicial review
- An order of a court remains valid and binding until vacated, even if the basis for it has fallen away
Court orders
#- 1.The court declined to grant any of the substantive orders sought in the claimants' application for the time being
- 2.The court expressed its willingness to proceed to hear the matter once the High Court order is vacated
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 162(2) of the Constitution of Kenya 2010; section 22 of the Sixth Schedule; Industrial Court Act 2011; section 87 Employment Act 2007 and section 112 Labour Institutions Act 2007
Relief refused
#Vacation of the High Court order staying proceedings and restoration of the interlocutory injunction
The court held it has jurisdiction to proceed but lacks power to vacate the High Court order made before the new Constitution and the Industrial Court Act 2011; parties should petition the High Court to vacate it
Costs
No costs order made in the judgment.
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.
The logical conclusion of our foregoing conclusions is that we have the jurisdiction to proceed to hear this case.
In the circumstances we are unable to grant any of the substantive orders sought for the time being.
Parliament has therefore spoken in a clear and loud voice.
The dispute is therefore a labour dispute since it flows from the claimants' employment contracts with the respondent.
Issues in the judgment
#Inconsistent case-number references: the claimant's counsel's citation of Petition No. 573 of 2009 is later referred to by the court as 'petition 573 of 2010'
Date inconsistencies in the chronology: the memorandum of claim is stated as filed 30th June 2010 while the Notice of Motion is dated 30th June 2011, and the stay order of 20th July 2011 is later referred to as recorded on 20th July 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mwangi & 183 others v Kenya Shell Ltd (Cause 752 of 2011) [2011] KEIC 1 (KLR)", Case Analysis (2011). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keic/2011/1/eng@2011-09-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.