Labour Officers Appointed to Prosecute Offences under the Labour Institutions Act Can Prosecute Offences Arising from the Employment Act and other Labour Laws
Republic v Douglas Patrick Barasa Queens Bookshop
Criminal Case 5 of 2014
High Court of Kenya at Busia
F Tuiyott, J
July 3, 2014
Reported by Andrew Halonyere & Anne Mbuthia
The Applicant brought an application for revision of a decision by the Chief Magistrate’s Court to reject two counts of a charge sheet in respect of labour-related charges brought against the Respondent. The said charges were rejected on account of the fact that the Prosecutor in the matter had, through a Gazette Notice, been appointed as a public prosecutor by the Director of Public Prosecutions (DPP) for the purpose of all cases arising under the Labour Institutions Act, 2007; whereas those charges had been brought under the Employment Act.
I. Whether a person appointed as a public prosecutor for the purpose of the Labour Institutions Act, 2007, was duly appointed to prosecute all offences arising from all labour laws
II. Whether the High Court had jurisdiction to hear an application for revision where the applicant had the option to appeal against a decision
III. What was the status on the invocation of the supervisory jurisdiction of the High Court?
IV. What principles applied in the interpretation of the Gazette Notice in question?
Criminal Practice & Procedure- prosecution- power of the DPP to appoint public prosecutors- where the DPP appointed a public prosecutor for the purpose of the Labour Institutions Act, 2007- whether a person so appointed was duly appointed to prosecute all offences arising from all labour laws- Constitution of Kenya 2010 article 157 (9); Office of the Director of Public Prosecutions Act, 2013 section 29
Criminal Practice & Procedure- jurisdiction- jurisdiction of the High Court to entertain proceedings by way of revision- whether the High Court had jurisdiction to hear an application for revision where the applicant had the option to appeal against a decision- Criminal Procedure Code (Chapter 75 Laws of Kenya) section 364 (5)
Jurisdiction- jurisdiction of the High Court- supervisory jurisdiction of the High Court- what was the status on the invocation of the supervisory jurisdiction of the High Court- Constitution of Kenya, 2010 article 165 (6) & (7)
Statutes- subsidiary legislation-construction of subsidiary legislation- definition of subsidiary legislation- where a legislative provision delegating powers was defined as a subsidiary legislation- where a Gazette Notice delegated the power of prosecution- what principles applied in the interpretation of the Gazette Notice in question- Interpretation and General Provisions Act (Chapter 2 Laws of Kenya), section 2
Constitution of Kenya, 2010
Article 165 (6)
The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court.
Article 165 (7)
For the purposes of clause (6), the High Court may call for the record of any proceedings before any subordinate court or person, body or authority referred to in clause (6), and may make any order or give any direction it considers appropriate to ensure the fair administration of justice.
Criminal Procedure Code (Chapter 75 Laws of Kenya)
Section 364 (5):
When an appeal lies from a finding, sentence or order, and no appeal is brought, no proceeding by way of revision shall be entertained at the insistence of the party who could have appealed.
Interpretation and General Provisions Act (Chapter 2 Laws of Kenya)
“Subsidiary legislation” means any legislative provision (including a transfer or delegation of powers or duties) made in exercise of a power in that behalf conferred by a written law, by way of by-law, notice, order, proclamation, regulation, rule, rule of court or other instrument
Labour Institutions Act, 2007
Section 35(1) (k)
A labour officer may, for the purpose of monitoring or enforcing compliance with any labour law—
…institute proceedings in respect of any contravention of any provision of this Act or for any offence committed by an employer under this Act or any other Labour Law
1. Section 364 (5) of the Criminal Procedure Code was not intended to preclude the Court from considering the correctness of a finding, sentence or order merely because the facts of the matter had been brought to its notice by a party who had a right of appeal. (Republic v Ajit Singh s/o Vir Singh (1952) EA 822)
2. The use of the word “insistence” in section 364 (5) was not idle. Whilst a party who would have exercised its right of appeal could not insist on proceeding by way of a revision, the Court could in appropriate instances still entertain the revision. On the converse the Court would not do so where the applicant was abusing the process (Republic v Gayatri Deep Enterprises & 2 others Busia Criminal No.112 of 2011). It would be incumbent upon the Court to satisfy itself that the application was not an abuse of process before entertaining it.
3. Article 165 (6) of the Constitution as read together with article 165 (7) gave the High Court a wide power. The Court could invoke its supervisory jurisdiction in circumstances where it deemed it necessary to safeguard and promote the fair administration of justice.
4. Some statutes provided specific instances for the exercise of supervisory authority by the High Court over judicial or quasi-judicial bodies subordinate to it. Where there was a specific and alternative remedy then a party seeking supervisory redress had to use that avenue unless it could be demonstrated that the alternative remedy was not efficacious. To invoke the use of article 165(6) of the Constitution even where there was a specific and effective statutory framework would be to diminish the importance of both the constitutional and statutory provisions.
5. It had not been demonstrated that the Applicant chose revision merely as a way of defeating limitation of time or that the delay in making the application had prejudiced the Respondents. The Court therefore had jurisdiction to hear the application even without considering the scope of its supervisory jurisdiction under article 165 (6) of the Constitution.
6. Read as a whole, the wording of the impugned Gazette Notice was problematic. In order to unlock that impasse, it was necessary to understand the legal character of that Gazette Notice. By dint of section 2 of the Interpretation and General Provisions Act, a transfer or delegation of powers or duties made in exercise of a power allowing that transfer or delegation conferred by a written law was subsidiary legislation.
7. Given that the relevant Gazette Notice was subsidiary legislation, the Court had to fall to the law with respect to the construction of subsidiary legislation so as to interpret it. While one of the principles of statutory interpretation was that words of statute had to be given their plain and ordinary meaning, that approach might not have been helpful if the words used were indefinite. It might not have helped to be literal-centric. In such instances, it was permissible, in construing the subsidiary legislation, to have regard to its context. That context included the purpose and scope of a statute and, within certain limits, its background.
8. In its preamble, the Labour Institutions Act proclaimed that it was “an Act of Parliament to establish labour institutions, to provide for their functions, powers and duties and to provide for other matters connected thereto.” In section 3, the Statute defined “labour law” to mean “any Act dealing with labour matters.” These statutes would include the Employment Act, the Labour Relations Act, the Occupational Safety and Health Act and the Work Injury Benefits Act.
9. In making the appointments in the impugned Gazette Notice, the DPP avowed that he did so pursuant to section 35(1) (k) of the Labour Institutions Act. A purposive interpretation of that Notice could not be made without having regard to the purpose and spirit of section 35 of that Act. That section enumerated the powers to be given to the Labour Officer for purposes of monitoring and enforcing compliance with “any” labour law.
10. To suggest that the DPP restricted the appointment made vide the Gazette Notice in question only to contraventions or offences in respect of the Labour Institutions Act would have been to suggest that the DPP could appoint a Labour Officer to prosecute with respect to some labour laws and not others. That proposition could have found support in the provisions of article 157 (9) of the Constitution which provided that the powers of the DPP could be exercised in person or by subordinate officers acting in accordance with general or special instructions; and in section 29 of the Office of the Director of Public Prosecutions Act, 2013 which provided that a public prosecutor appointed under subsection (1) would be bound to comply with all guidelines and instructions issued by the DPP in respect of prosecutions.
11. If it was the intention of the DPP to limit a labour officer’s power relating to prosecution to only one labour law, the DPP would have had to use unequivocal language. The words used in the Gazette Notice in question were not unequivocal.
12. A plain reading of section 35(1) (k) of the Labour Institutions Act was that a labour officer would have prosecutorial power in respect of contraventions of the provisions of that Act and offences committed by an employer under all labour law.
13. The words “for the purpose of all cases arising under the Labour Institutions Act, 2007” used in the Gazette Notice had to be construed to mean all cases arising under any labour law. The Prosecutor in question was a competent public prosecutor for the purpose of drawing and prosecuting any offence committed by an employer under the Employment Act.
14. The debate as to whether the Prosecutor in question was a duly appointed Public Prosecutor for the purpose of the Employment Act resulted from the rather imprecise wording of the Gazette Notice by which he was appointed. Although the debate had been resolved in favour of the State, the decision had to be brought to the personal attention of the drawer of the said notice, the Director of Public Prosecutions.
1.Republic v Ajit Singh s/o Vir Singh  EA 822 –(Explained)
2.Walome v Republic  KLR 497 –(Followed)
3.Republic v Gayatri Deep Enterprises & 2 others Criminal Case No 112 of 2011 –(Explained)
4.Omanga, Charles & another v Independent Electoral and Boundaries Commission & 2 others Petition No 2 of 2012 –(Explained)
1.Constitution of Kenya, 2010 articles 157(9); 165(6)(7) –(Interpreted)
2.Criminal Procedure Code (cap 75) sections 89(5); 348A; 349; 364(5) –(Interpreted)
3.Employment Act, 2007 (Act No 11 of 2007) section 2–(Interpreted)
4.Labour Institutions Act, 2007 (Act No 12 of 2007) sections 3, 35(1)(k) –(Interpreted)
5.Labour Relations Act, 2007 (Act No 14 of 2007) In general –(Interpreted)
6.Occupational Safety and Health Act, 2007 (Act No 15 of 2007) In general –(Interpreted)
7.Office of the Director of Public Prosecutions Act, 2013 (Act No 2 of 2013) section 29–(Interpreted)
8.Work Injury Benefits Act, 2007 (Act No 13 of 2007) In general–(Interpreted)
1.Mr Kelwon, State Counsel, for the Applicant
2.Mr Omondi for the Respondents