DO THE MAGISTRATE'S COURTS HAVE JURISDICTION TO HANDLE MATTERS OF LABOUR LAW?

Whereas section 11 of the Labour Institutions Act No. 12 of 2007 established the Industrial Court and further went on under section 12 to give it exclusive jurisdiction to hear, determine and grant appropriate relief in respect of applications, claims, complaints or infringement of any of the provisions of the Act or those of any other legislation granting it jurisdiction in respect of such matter as may arise between an employer and employee in the course of employment, between an employee or employer’s organisation and a trade union or between a trade union, an employer’s organisation, a federation and a member thereof and whereas section 87 of the Employment Act, 2007 extends such jurisdiction to the court with subsection (2) further stating that no other court other than the Industrial Court shall determine any complaint or suit referred to in the said section; Section 16 (2) of the same Labour Institutions Act, 2007 provides for an exception to the exclusive jurisdiction of the court by granting the Chief Justice discretion to designate any Magistrate’s court to hear matters relating to labour laws after consultation with the Minister and the Principal Judge and thereafter placing an order in the gazette.

The promulgation of the Constitution of Kenya, 2010 saw the entrenchment of the Industrial Courts in the Constitution under article 162 (2) (a) as a superior court of record. In exercise of the authority conferred on parliament to determine the jurisdiction of the court under clause 3 of the said article, Parliament enacted the Industrial Court Act, No. 20 of 2011 which was assented to on the 27th August, 2011 and commenced on the 30th August, 2011 and which act established the court under section 4 for the purpose of settling employment and industrial relations disputes and the furtherance, securing and maintenance of good employment and labour relations in Kenya.The Act further gave the court exclusive original and appellate jurisdiction to hear and determine all disputes referred to it in accordance with Article 162(2) of the Constitution and the provisions of the Act or any other written law which extends jurisdiction to it.

The argument as to whether the magistrate's courts were possessed of the jurisdiction to handle matters touching on labour laws following the enactment and coming to force of the Industrial Court Act characterized the proceedings of such matters and indeed saw litigants sent away from some of the said courts and further precipitated the Deputy Chief Justice's (as she then was) intervention through a circular dated the 27th June, 2011 and addressed to all heads of stations and all deputy registrars and directing that claims arising out of an employer/employee relationship that are of a tortious nature are not labour disputes and therefore fell within the jurisdiction of the courts and should be filed in the courts and not in the industrial court hence the courts should not send such litigants away.

It is in exercise of the powers conferred on him under the said section 16 (2) of the Labour Institutions Act that the Chief Justice by gazette notice number 9243 dated the 27th July, 2011 designated all courts in the 47 counties presided over by magistrates of the rank of Senior Resident Magistrate and above as Special Courts to hear and determine employment and labour relations cases within their respective areas of jurisdiction and specifically in respect of matters relating to work injury as well as offences under the Labour Institutions Act, the Employment Act, the Occupational Safety and Health Act and the Labour Relations Act, all being acts of 2007.

Section 32 (1) of the Industrial Court Act,2011under the transitional provisions provides that any regulation or other instrument made or issued under the Labour Institutions Act, 2007, shall continue to have effect as if such regulation or other instrument were made or issued under this Act. This could as well be interpreted to mean that section 16 (2) of the Labour Institutions Act, 2007, among other provisions, which confers on the Chief Justice the power to designate magistrate courts to handle matters touching on labour laws continues to have effect and that consequently such magistrate's courts as designated in the gazette notice number 9243 of 2011 still do have jurisdiction to hear such matters as therein designated. This could be further inferred from section 18 (b) of the Industrial Court Act, 2011 which provides that the court has jurisdiction to hear and determine appeals from any other court, local tribunal or commission as prescribed under any written law, in which case, "any other court" could only mean any court handling matters of labour law and "any written law" could be argued as including the law under the Labour Institutions Act which gives allowance for magistrate's courts to handle matters of labour law as stated above and which law continues to have effect notwithstanding the enactment of the Industrial Court Act of 2011. This will therefore mean that by gazetting the designated courts, the Chief Justice was acting Intra-vires and per the law.

However, going by the Labour Institutions Act, 2007 found on the Kenya Law Reports website under the 'Laws of Kenya' button which indicates that section 16 of the act was repealed by act number 20 of 2011 which happens to be the Industrial Court Act, that could only mean that the powers of the Chief Justice under section 16 (2) of the act no longer exist hence his act of designating Special Magistrate's Courts to handle matters touching on labour laws has been overtaken by the law and consequently, the designated courts in gazette notice number 9243 no longer have jurisdiction to hear such matters as set out in the said notice. This is furthered by the fact that his role under section 27 of the Industrial Court Act has been reduced to basically that of formulating rules for regulating the practice and procedure of the court and such is to be done in consultation with the Employment and Labour Relations Rules Committee established under section 23 of the Act.

In conclusion, if it be that the provisions of the Labour Institutions Act, 2007 and more so section16 were repealed by the enactment of the Industrial Courts Act, 2011, then the Chief Justice comes short of powers to designate magistrate courts to hear labour law disputes and as such voiding the gazette notice issued in 2011 allowing special Magistrate's Courts to hear the said matters for being founded on repealed law. However, if it be to the contrary, then the Chief Justice still has mandate under section 16 (2) of the Labour Institutions Act and by virtue if section 32(1) of the Industrial Court Act to designate Magistrate Courts to hear labour law disputes thereby giving the force of law to the gazette notice number 9243 of 2011.

I'M DIFFERENT

 I’d like to acknowledge that in all similarities there always is this one thing that works to make us distinct. But this has always been my prayer that in the event of an increase in these distinctions that we may not close our minds to the many similarities that bind us together. That we may hold onto them in such manner as to make these distinctions be drowned in the holding tight of them that bind us together. It goes without saying that apart from the few issues we hew out of life in form of ideology, religion, race and traditions that draw lines in our lives, we have much more that we share in common in the form of features as human beings.

We live in our day-to-day lives in our separate niches.  We perform different duties all in the implied unity of purpose; to make the world a better place to live in today, tomorrow and in the days to come. Above all is the desire that we do it in the pleasure of our creator.

Then stems up this notion of want, the want to feel better, to live better, and to be appreciated better, to rise higher in identity, in status, in honour, in praise, in fame…. Then enters the competition of pride, the greed for status and the contempt for any other that in spite of any similarity we hold, stands a notch lower or rather is different in our rating from our stance. We dig deep into nothingness and out of it we emerge with magnificent differences swollen with the yeast of pride, only that we may feel special, stand a rank higher and discredit all others as vain. Thus we major on that which will tell us apart and colour us much brighter. We become blind to all similarity and look upon with contempt any attempt at logic.

We as a result lose our focus of the many things that bind us together and from day to day fail to appreciate one another given that we are out to look for a distinction rather than a reason to celebrate our identity as sons, daughters, brothers, sisters, families, groups, professions and more so as human beings. We cushion ourselves with only them that share in our very holdings and segregate them that differ by a hair-width. We end up in endless controversy as we pick holes even with them that we hold camp with.

Is it that difficult, that we may hold it in our minds that we are one, that we share much as human beings rather than  entities, that them that hold us apart are but a means but we hold the same destiny no matter the route we take. That we may retrace our purpose as human beings, appreciate our uniqueness and embrace the many factors that bind us together and strive to see a similarity in every difference…

N/B This article first appeared in the facebook notes of Henry Paul Gichana I specifically and intentionally chose to replicate it here that it may encourage our positive thinking that we may appreciate each others ideas irrespective of the eyes with which we look at the same scenario and that this be so without prejudice to our beliefs and our right to hold and air out our considered opinions with utmost freedom yet courteously so.