Assigning of judges to hear & determine any matter is a prerogative of the Chief Justice

Kenya Medical Research Institute v Attorney General & 3 others

In the Industrial Court of Kenya at Nairobi

Petition 31 of 2013

N Nduma, M Ngugi, G V Odunga, JJA

May 8, 2014

Reported by Teddy Musiga and Stanley Mumo

Brief facts

The petitioner (Kenya Medical Research Institute) employed some thirty five employees in accordance with the regulations for recruitment of staff set out by the Board of Management established under the Science and Technology (Amendment) Act of 1979. A dispute arose between the petitioner and the said employees by the petitioner’s decision to terminate the appointment of the interested parties on allegations of irregular appointments. Aggrieved by the decision the interested parties commenced legal proceedings before the then Industrial Court (referred to hereinafter as the Tribunal) the Tribunal made an award reinstating the interested parties to their positions with the petitioner. The petitioner then lodged Civil Appeal No. 15 of 2011 to the Court of Appeal purportedly pursuant to section 27 of the Labour Institutions Act which Appeal was however struck out on the ground that it was incompetent as the Court of Appeal did not have the jurisdiction to entertain the said appeal. It was that decision by the Court of Appeal which provoked the instant petition. When the instant petition came before Hon. Mr. Justice D K Marete, the petitioner, applied under section 21(2) of the Industrial Court Act, 2011 as read with Article 165(4) of the Constitution for the referral of the matter to the Hon. The Chief Justice for empanelling of a Bench of not less than three Judges to hear and determine the petition which application the learned Judge acceded to. By his directions, the Hon. The Chief Justice empaneled a three Judge Bench comprising Hon. Mr. Justice Nderi Nduma (Presiding), Hon. Lady Justice Mumbi Ngugi and Hon. Mr. Justice George Odunga to hear the petition hence the composition of this Bench. The employees being interested parties in theinstant petition made an objection as to the composition of the empaneled bench challenging its mixed composition. They contended that the presiding judge was a judge of the Industrial court while the other two were judges of the High court.

Issue:

1. Whether the action of the Chief Justice in empanelling a mixed bench consisting of judges from the industrial court and those from the High court to handle a matter concerning labour relations was unconstitutional.

Jurisdiction- jurisdiction of the Industrial court- whether the Industrial court can handle matters to determine issues relating to redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights- Constitution of Kenya, 2010 article 162.

Constitutional Law-interpretation of the Constitution-powers of the Chief Justice- powers of the Chief justice with regard to the empaneling of a bench- whether the Chief Justice acted within his constitutional mandate when he empaneled a bench consisting of judges from different divisions- Constitution of Kenya, 2010 article 165.

Article165 of the Constitution of Kenya, 2010:

(1)       There is established the High Court, which—

(a) shall consist of the number of judges prescribed by an Act of Parliament; and

(b) shall be organised and administered in the manner prescribed by an Act of Parliament.

(2) There shall be a Principal Judge of the High Court, who shall be elected by the judges of the High Court from among themselves.

(3) Subject to clause (5), the High Court shall have—

(a) unlimited original jurisdiction in criminal and civil matters;

(b) jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened;

(c) jurisdiction to hear an appeal from a decision of a tribunal appointed under this Constitution to consider the removal of a person from office, other than a tribunal appointed under Article 144;

(d) jurisdiction to hear any question respecting the interpretation of this Constitution including the determination of—

(i) the question whether any law is inconsistent with or in contravention of this Constitution;

(ii) the question whether anything said to be done under the authority of this Constitution or of any law is inconsistent with, or in contravention of, this Constitution;

(iii) any matter relating to constitutional powers of State organs in respect of county governments and any matter relating to the constitutional relationship between the levels of government; and

(iv) a question relating to conflict of laws under Article 191; and

(e) any other jurisdiction, original or appellate, conferred on it by legislation.

(4) Any matter certified by the court as raising a substantial question of law under clause (3)(b) or (d) shall be heard by an uneven number of judges, being not less than three, assigned by the Chief Justice.

(5) The High Court shall not have jurisdiction in respect of matters—

(a) reserved for the exclusive jurisdiction of the Supreme Court under this Constitution; or

(b) falling within the jurisdiction of the courts contemplated in Article 162 (2).

(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.

(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.

Held:

1. The power to empanel a Bench composed of not less than 3 judges was provided for under Article 165(4) of the Constitution. Therefore, by empanelling this Bench, the Chief Justice was carrying out his constitutional mandate as opposed to similar functions under the former Constitution which were not hinged on the constitutional provisions and were merely administrative. The exercise of the power of the Chief Justice to empanel the Bench had not been challenged.
2. It was arguable whether the instant Court could go round the exercise by the Chief Justice of his constitutional mandate and make a decision whose effect was to set aside the said decision when the said decision had not been challenged. To hold, as the interested parties have urged the Court to do, that the Bench as empanelled had no jurisdiction to deal with the matter amounted to overturning the decision made by the Chief Justice. A decision made by the Chief Justice empanelling a Bench was not just a legal process but a constitutionally mandated process.
3. Article 165(4) of the Constitution stipulated the circumstances under which the Chief Justice could exercise his powers under that Article.  It was a requirement that the substantial question of law which justified the invocation of the said provision had to either be where the Court was required to make a determination of the question whether a right or fundamental freedom in the Bill of Rights had been denied, violated, infringed or threatened or a determination in respect of a question respecting the interpretation of the Constitution.
4. It was therefore clear that Article 165(4) could only be invoked in specific and limited circumstances. That was therefore, not an ordinary jurisdiction. A Bench empanelled under the said provision could not therefore be termed as an Industrial Court so as to be constituted solely of Industrial Court Judges. In any case, it was not contended that the instant Court as constituted was not properly seized of the jurisdiction to determine the twin issues contemplated under Article 165(4) of the Constitution.
5. A finding that the instant  Court was not properly constituted would not in promote the purposes, values and principles of the Constitution, advance the rule of law, human rights and fundamental freedoms in the Bill of Rights; permit development of the law; or  contribute to good governance. To make such a finding would go against the principle that Courts established under Article 162(2) were superior courts of the same status as the High Court. What the interested parties were urging the Court to do was in effect to find that the status of the High Court was not the same as the Industrial Court, which finding would have gone against both the letter and the spirit of the Constitution.
6. Even if the court were to find that the High Court was differently constituted from the Industrial Court, it would still be bound to find that the Constitution only created Courts. It did not create different cadres of Judges. It only provided for the mode of appointment of Judges and their qualifications. The Courts having been so created by the Constitution, it was the mandate of the Judicial Service Commission to appoint Judges to preside over the said Courts. It was therefore not the person of the Judge which determined the kind of disputes the Court was seised of. Rather it was the Court which dictated the kind of disputes the Judge presiding therein could deal with.
7.  To argue, as was done by the interested party  that a High Court Judge was not competent to preside over employment and labour disputes but was competent to do so if elevated to the Court of Appeal was with due respect absurd. Similar reasoning applied to an Industrial Court Judge who was elevated to the Court of Appeal if it were to be contended that that Judge was not competent to, for example, deal with road traffic accident matters.
8. The additional competencies stipulated under the Act did not render an otherwise constitutionally qualified Judge incompetent to preside over the Industrial Court. Although the interested parties argued that the Court of Appeal presiding over a matter arising from the Industrial Court had no power to re-evaluate the evidence, a power donated to the appellate courts on first appeal, rule 29(1) of the Court of Appeal Rules empowered the Court of Appeal, on any appeal from a decision of a superior court acting in the exercise of its original jurisdiction, to not only re-appraise the evidence and to draw inferences of fact but also to take additional evidence.
9. In assigning Judges under Article 165(4) of the Constitution, the Chief Justice was free to appoint any Judge of the High Court or a Judge of the Court with the status of the High Court.

Objection dismissed with no order as to costs.

Cases

East Africa

1. Apex Finance Limited & another v Kenya Anti-Corruption Commission Judicial Review No 64 of 2011 – (Mentioned)
2. Besigye & others v Attorney-General [2008] 1 EA 37 – (Mentioned)
3. Brookside Dairy Ltd v Attorney General & another Petition No 33 of 2011 – (Mentioned)
4. Chizondo, Ali Said & 2 others v Republic Miscellaneous Criminal Application No 8 of 1998 – (Mentioned)
5. East African Railways Corp v Anthony Sefu [1973] EA 327 – (Explained)
6. Foundation for Human Rights Initiatives v Attorney General  [2008] 1 EA 120 – (Mentioned)
7. Joho, Hassan Ali v Suleiman Said Shahbal & 2 others Civil Appeal 12 of 2013 – (Mentioned)
8. Kenya Bankers Association v Minister for Finance & another (No 3) [2002] KLR 56 – (Mentioned)
9. Kigula & others v Attorney-General [2005] 1 EA 132 – (Explained)
10. Kimani, Joseph & 2 others v Attorney General & 2 others Petition 669 of 2009 – (Mentioned)
11. Matende, Samson v Republic Criminal Appeal No 141 of 2009 – (Followed)
12. Momanyi, Samuel G v Attorney General & another Petition No 341 of 2011 – (Mentioned)
13. Mugendi, Daniel v Kenyatta University & 3 others Constitutional Reference No 142 0f 2011– (Mentioned)
14. Njue, Benson Ndwiga & 108 others v Central Glass Industries Limited Civil Case No 515 of 2003 – (Mentioned)
15. United States International University (USIU) v Attorney General Petition 170 of 2012- (Followed)

Statutes

East Africa

1. Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (Constitution of Kenya, 2010 Sub Leg) rule 2
2. Constitution of Kenya, 2010 articles 23(2)(3); 41; 126(1); 159(1); 162,162(1); 166(2); 162(2)(a); 165(2)(3)(b)(d)(4); 165(5)(b); 166; 166(5); 259 – (Interpreted)
3. Court of Appeal Rules (cap 9 Sub Leg) rule 29(1)
4. Industrial Court Act, 2011 (Act No 20 of 2011) sections 12,21(2); 22(2) – (Interpreted)
5. Labour Institutions Act (Act No 12 of 2007) section 27 – (Interpreted)
6. Science and Technology (Repealed by Act No 28 of 2013) (cap 250) – In general – (Interpreted)