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IndustrialOtherNot stated in the judgment

Gacheru v Amissah & another (Cause 524 of 2012) [2012] KEIC 26 (KLR)

Industrial Court of Kenya
24 September 2012
2,841 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Industrial Court ruled that judges cannot make final orders affecting a party without hearing them first, setting aside an order demanding Kshs. 1.2 million as security.

What this practically means

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Executive summary

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This first-instance ruling of the Industrial Court dealt with two competing applications: the Respondents' Notice of Motion dated 29th May 2012 seeking stay of proceedings, stay and setting aside of an ex parte order of 3rd May 2012 requiring the 1st Respondent, a Ghanaian national, to deposit Kshs. 1,200,000/- in court as security; and the Claimant's earlier Notice of Motion dated 27th April 2012 which had produced that order. The Claimant, apprehensive that the 1st Respondent would leave the jurisdiction before determination of his employment claim, had obtained the deposit order ex parte before Judge S. Madzayo. The central question the court framed was whether it could competently review the decision of Hon. Madzayo. Nzioki Wa Makau J traced the constitutional status of the Industrial Court under Article 162(2)(a) and section 4 of the Industrial Court Act, holding that while the predecessor tribunal was subordinate to the High Court, the present Court is a superior court of record. Applying the principles in Mbogo v. Shah on interference with judicial discretion, and relying on natural justice (audi alteram partem), the court found the ex parte deposit order gravely erroneous: it was draconian, made without hearing the Respondents, and imposed an arbitrary sum on an unliquidated employment claim. The court set aside the order of 30th April 2012, directed the Respondent's Counsel to execute a suitable undertaking as to damages within 14 days, and awarded costs in the cause.

Questions the Court framed

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

  1. 1.Whether this Court can competently review a decision made by the Court that granted the orders of 3rd May 2012, namely the decision by Hon. Madzayo to order a deposit of Kshs. 1,200,000/-
  2. 2.Whether the ex parte order for deposit of security was properly granted

Key legal issues

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01

Competence to review the ex parte security order

Holding

The court had power to review the order of its predecessor/sitting judge and varied it by setting it aside

Reasoning

The court examined the status of the judge who made the order, noting the predecessor tribunal was subordinate to the High Court and the proceedings continued under section 33 of the Industrial Court Act. It then applied the principles for interfering with judicial discretion, finding the ex parte deposit order was draconian, made without hearing the Respondents, and based on an arbitrary liquidated sum for an unliquidated employment claim.

p. 6
02

Natural justice - audi alteram partem

Holding

Making final orders ex parte violated the rule that no one is to be condemned unheard

Reasoning

The court held the second cardinal rule of natural justice was engaged; the court had made what were effectively final orders at the ex parte stage, rendering the proposed inter partes hearing superfluous and unfair to the party not heard.

p. 4

Legal principles established

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  • A court should not condemn a party unheard; final orders made ex parte without a hearing breach natural justice
  • Interference with judicial discretion is warranted only where the judge misdirected himself or was clearly wrong resulting in injustice
  • The Industrial Court established under Article 162(2)(a) is a superior court of record with the status of the High Court, unlike its predecessor tribunal

Court orders

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  1. 1.The Order of 30th April 2012 by Honourable S. Madzayo be and is hereby set aside
  2. 2.The Respondent's Counsel to execute a suitable undertaking as to damages within 14 days
  3. 3.Costs in the Cause

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Article 162(2)(a) of the Constitution of Kenya 2010; Industrial Court Act No. 20 of 2011, Section 4

Relief refused

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Stay of further proceedings and of the order of 3rd May 2012 (as framed in the Respondents' Notice of Motion of 29th May 2012)

Mooted by the court's decision to set aside the order for deposit rather than grant a stay

Costs

Costs in the Cause

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.

The Order of 30th April 2012 by Honourable S. Madzayo be and is hereby set aside
p. 6final orders - setting aside ex parte security order
The Respondent's Counsel to execute a suitable undertaking as to damages within 14 days
p. 6final orders - undertaking as to damages
The draconian decision was made at the ex parte stage and this was manifestly unfair to the party who was not heard.
p. 6natural justice and ex parte orders
This Court is a Court established pursuant to Article 162(2) of the Constitution of Kenya, the supreme law of the land.
p. 4status of the Industrial Court

Issues in the judgment

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minor

Internal inconsistency in dates for the order set aside - described as the Order of 3rd May 2012 (extracted) but the final order sets aside the Order of 30th April 2012

minor

The Industrial Court Act is described inconsistently as Act No. 20 of 2010 and Act No. 20 of 2011 in the same judgment

minor

Judgment does not state the case number, the full name of the 2nd Respondent, or the parties' full designations beyond the 1st Respondent

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, "Gacheru v Amissah & another (Cause 524 of 2012) [2012] KEIC 26 (KLR)", Case Analysis (2012). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keic/2012/26/eng@2012-09-24

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