By Claris Ogangah

QUESTION: The Employment Act and the other new labour laws keep referring to the Industrial Court, but I have seen people go to the High Court to challenge decisions from the Industrial Court. Kindly clarify where matters under the labour laws should be handled?

ANSWER: It is important for employers and employees to know where their disputes can be resolved in case an issue concerning employment arises.

Four new labour laws came into force in 2007. They were The Employment Act, The Labour Relations Act, The Work Injuries Benefits Act and The Occupational Safety and Health Act. In all the four laws, there are clear provisions that the Industrial Court shall have jurisdiction to resolve all labour disputes.

My understanding is that the Industrial Court is at the same level as a High Court and indeed has a judge to adjudicate labour disputes.

The Industrial Court is only mandated to resolve labour disputes and cannot handle other civil or criminal disputes.

Section 60(1) of the Constitution states: "There shall be a High Court, which shall be a superior court of record and which shall have unlimited jurisdiction in civil and criminal maters and such other jurisdiction and powers as may be conferred on it by this Constitution or any other law."

Section 65(2) proceeds to establish courts subordinate to the High Court and also gives it powers to supervise any proceedings before these courts.

Section 123(1) provides that "subordinate court means a court of law other than the High Court, a court having jurisdiction to hear appeals from the High Court or a court martial".

The argument has been that since the Constitution does not specifically establish an Industrial Court, then it is part of the courts established under Section 65 of the Constitution and hence is a subordinate court.

In the Kenya Airways Ltd vs the Kenya Pilots Association suit, the court found that the High Court was superior to the Industrial Court, which was under its supervision.

But the High Court cannot interfere with the Industrial Court while running its duties. The High Court will only interfere if the Industrial Court exceeds it jurisdiction and deals with issues that are clearly not within its mandate.

So the only court mandated to deal with labour issues is the Industrial Court. Once the Industrial Court gives an award, the successful party can make an application to the High Court to adopt the award for purposes of execution.

If the Industrial Court goes out of its mandate to address issues not within its jurisdiction, then a party to the suit can move to the High Court to have it interpret whether the Industrial Court acted within its mandate and the court then makes the appropriate orders that will ensure the Industrial Court does not exceed its mandate.