Which court is more powerful
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By Priscilla Nyokabi Kituo Cha Sheria is a non-governmental organisation whose vision is to ensure the poor and marginalised access justice. A case starts at the Industrial Court and thereafter reverts to the High Court where the rules applicable are the Civil Procedure ones. This process makes it difficult and becomes way out of reach for the poor clients, in that; it deviates from the original intention of Parliament, which was to simplify the procedure in labour matters. After an expeditious hearing process at the Industrial Court, an award issues but when it comes to execution, a miscellaneous application has to lie to the High Court. This process delays and, thus, denies these poor clients justice. In a recent case, the Industrial Court sentenced an offending party to two months in jail for contempt of court. The learned judges issued the sentence after the offending party failed to appear before the Industrial Court for contempt of its order. Immediately after, the offending party proceeded to the High Court which granted an order to stay proceedings and execution of the award before the Industrial Court. Is the Industrial Court a subordinate court or an equal to the High Court? Which court is more powerful between the High Court and Industrial Court pertaining to Labour matters? The Labour Institutions Act No. 12 of 2007 establishes the Industrial Court. Section 11 provides: "There is established an Industrial Court with all the powers and rights set out in this Act or any other law for the furtherance, securing and maintenance of good industrial or labour relations and employment conditions in Kenya." (Emphasis ours) Force and effect In its Section 12, it provides: "In the discharge of its functions under this Act, the Industrial Court shall have the powers to grant injunctive relief, prohibition, declaratory order, award of damages, specific performance or reinstatement of an employee." And, Section 12 (6) provides: "Any decision or order by the Industrial Court shall have the same force and effect as a judgment of the High Court and a certificate signed by the Registrar of the Industrial Court shall be conclusive evidence of the existence of such decision or order." And Section 27 (1) states: "Any party to any proceeding before the Industrial Court may appeal to the Court of Appeal against any final judgment, award or order of the Industrial Court" If a decision of the Industrial Court has the same force or effect of law as that of the High Court, then why should the High Court sit to determine an issue that has arisen and been determined in the Industrial Court? Section 87 (2) of the Employment Act of 2007 provides that "only the Industrial Court (to the exclusion of all other courts) has the jurisdiction to determine labour disputes" while Section 60 of the Constitution provides: "There shall be a High Court, which shall be a superior court of record, and which shall have unlimited original jurisdiction in civil and criminal matters and such other jurisdiction and powers as may be conferred on it by this Constitution or any other law." Under S. 65 (2), the Constitution gives the High Court supervisory jurisdiction in all civil or criminal proceedings. Section 64 of the Constitution provides: "There shall be a Court of Appeal which shall be a superior court of record, and which shall have such jurisdiction and powers in relation to appeals from the High Court as may be conferred on it by law." (Emphasis ours) Despite the above, there continues to be a clash between the two Courts. Since the Constitution is the Supreme law of the Land, all laws must be in conformity with it. The Constitution making committee should recognise and accord sufficient power to the Industrial Court to avoid a scenario where legislation contradicts the Constitution. Clear rules The Minister for Labour and the Rules Board should swiftly come up with clear rules pertaining to execution of the orders and awards issued by the Industrial Court. Kituo Cha Sheria feels that the fight for access to justice by the poor is being sabotaged by lack of regulations which ought to emanate from the Rules Board. There are no Rules gazetted to govern the form and content of the Industrial Court yet Section 21(6) empowers the Minister for Labour to publish Rules made by the Rules Board. The writer is the Executive Director, Kituo Cha Sheria.