[2008] KEHC 2385 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI (MILIMANI COMMERCIAL COURTS)

Civil Case 705 of 2005

ALLOYS NAGERI MUSUMBA ……………………………….…….. PLAINTIFF

VERSUS

KENYA COMMERCIAL BANK …………………..…………..…. DEFENDANT

RULING ON PRELIMINARY OBJECTION

(1) Alloys Nageri Musumba, the Plaintiff, was once employed by Kenya Commercial Bank Ltd., the Defendant. He was summarily dismissed by the Defendant for taking part, together with other employees, in a strike.

(2) The employees contested their dismissal in the Industrial Court (Cause No.77/99) which made an award in the Plaintiff’s favour. The award was also the subject of interpretation which was duly undertaken by the Industrial Court. The dispute was dealt with from the beginning to the end under the provisions of the Trade Disputes Act [Cap.234] since repealed.

(3) The Industrial Court made the award way back on the 7th March 2001. Apparently, the Defendant failed to comply with the award and refused to pay the Plaintiff the money ordered to be paid to him by the Industrial Court.

(4) So in order to secure the Defendant’s compliance, the Plaintiff instituted this suit on the 23rd December 2005 and asked for, among other reliefs, a declaration that the Defendant has failed to comply with the award, and a declaration that the Plaintiff do comply with section 16(6) of the Trade Disputes Act.

(5) The Defendant filed a Defence on the 21st March 2006 and denied the Plaintiff’s claim in its entirety. On the 4th December 2007, before the case was set down for hearing, the Defendant’s Advocates gave notice of preliminary objection that this court has no jurisdiction to entertain the Plaintiff’s claim.

(6) The Plaintiff states in paragraphs 4, 5, 6, 7 and 8 of his Plaint that Industrial Court Cause No.77/99 was dealt with and finally determined under the relevant provisions of the Trade Disputes Act [Cap.234]. The Trade Disputes Act was repealed by the Labour Relations Act, 2007 [Act No.14 of 2007] which came into force on the 26th October 2007. Section 84 of the Labour Relations Act, 2007 states –

“84. (1) The Trade Union’s Act and the Trade Disputes Act are repealed.

(2)Transitional provisions dealing with the transition from the Trade Unions Act and the Trade Disputes Act to this Act are contained in Fifth Schedule.”

(7) It is provided by section 17(1) of the Trade Disputes Act that the award or decision of the Industrial Court shall be final. And to put the matter beyond any doubt, it is expressly stated in sub-section (2) of section 17 as follows:-

“17. (2) The award, decision or Proceedings of the Industrial Court shall not be questioned or reviewed, and shall not be restrained or removed by prohibition, injunction, certiorari or otherwise, either at the instance of the Government or otherwise.”

(8) What the Plaintiff is seeking to do in this case is to circumvent the finality of section 17 of the Trade Disputes Act (Repealed). But he cannot succeed, and must fail, because his case is caught by paragraph 2(4) of the Transitional Provisions (Fifth Schedule), Labour Relations Act, 2007, which states as follows:-

“2. (4) Where any of the following matters commenced before the commencement of this Act, the matters shall be determined in accordance with the provisions of the Trade Disputes Act (now repealed)

(a) any trade dispute that arose before the commencement of this Act;

(b) any trade dispute referred to the Industrial Court before the commencement of this Act;

(c) any revision or interpretation of an award by the Industrial Court; and

(d) any summary dismissal that took place before the commencement of this Act;”

(9) As I have already said, the Industrial Court Cause No.77/99 was dealt with by the Industrial Court long before the Labour Relations Act, 2007, came into force. Accordingly, all applications arising from the award and its interpretation, including any application to enforce the award, must be brought under the Trade Disputes Act.

(10) For these reasons, this suit is incompetent and the court has no jurisdiction to entertain it. The preliminary objection accordingly succeeds with the result that the suit is hereby struck out.

(11) Costs, ordinarily, follow the event. In this case, however, I am somewhat troubled by the fact that the Defendant would appear to have willfully refused to comply with a lawful award made by a court of competent jurisdiction, namely the Industrial Court of Kenya. For that reason, I will make no order as regards costs.

Orders accordingly.

Dated and delivered at Nairobi this twenty-third day of May 2008.

P. Kihara Kariuki

Judge.