[2017] KEHC 2633 (KLR)

UREPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

CIVIL CASE NO 34 OF 2015

ANDREW MULIKA KITHUSI........................................PLAINTIFF

VERSUS

BEATRICE NTHAMBI MUYA................................1ST DEFENDANT

ZIPPORAH MBULWA MULWA..............................2ND DEFENDANT

THE SECRETARY

TEACHERS SERVICE COMMISSION....................3RD DEFENDANT

THE HONORABLE ATTORNEY GENERAL..........4TH DEFENDANT

RULING OF THE COURT

1. The Plaintiff in this case Andrew Mulika Kithusi alleges by his amended plaint dated 1st March 2017(Original Plaint had been filed on 16th July 2016) and filed on 8th March 2017 instant against the defendants jointly and severally that on or about the year 2010 the 1st and 2nd Defendant’s jointly and severally made false and malicious report to the Police officers to the effect that the plaintiff had defiled the 2nd Defendant and alternatively touched her private parts. The plaintiff claims that the 3rd Defendant while acting on the false and malicious report proceeded on 2nd March 2010 to dismiss the Plaintiff from teaching service by removing his name from the register.

2. Further on 4th March,2009 the plaintiff was arrested, detained and arraigned before Principal Magistrate’s Court in Criminal Case No.283 0f 2009 at Makindu Law Courts. He averred that the 3rd defendant ought to have awaited for the outcome of the charges that had been preferred against him.

3. He went on to say that he was maliciously and wrongfully prosecuted from the year 2009 to 2014 when the High Court sitting at Machakos found him innocent of the charge of defilement, quashed the conviction and set aside a sentence for 30 years imprisonment by the Lower Court. Therefore the acts of the 3rd defendant and Police department were actuated by malice on the part of the defendants.

4. The plaintiff claims from the defendant’s special and general damages, costs of the suit and interest and any other relief that the court may deem fit to grant.

5. The 1st and 2nd Defendants filed their statement of defence dated 6th May 2016 denying the contents of Paragraphs 7-15 and only admitted paragraphs 16 and 17. In their defence they went on to state that the decision to prosecute the plaintiff was made by the Director of Public Prosecution who is mandated in law to review the evidence and make independent recommendations on whether or not to prosecute anyone in Kenya.

6. The 3rd defendant herein, Teachers Service Commission filed their amended statement of defence on 24th March, 2016 denying the allegations by the plaintiff and they went ahead to lay out the particulars of the plaintiff’s immoral conduct and went ahead to defend its actions of dismissing the plaintiff.

7. The 4th defendant filed their Statement of Defence on 25th August 2015 denying all the contents of paragraph 5-14 of the plaint and proceeded to bring out the particulars of the statutory duties of the police.

Preliminary Objection

8. The 3rd Defendant on 27th March 2017 filed a preliminary objection dated 24th March 2017 on the following grounds of law;

a.That the subject matter as between the Plaintiff and the 3rd Defendant arises out of an employer/employee relationship, hence this Honourable Court lacks jurisdiction to hear and determine the matter.

b.That the substantive claim on which this Application is premised is statute barred pursuant to the provisions of Section 3(2) of the Public Authorities Limitation Act as read together with Section 90 of the Employment Act 2007 and ought to be struck out.

Submissions

9. The parties agreed to dispose of the matter by way of written submissions on the preliminary objection. The 4th defendant did not file written submissions.

3rd Defendant’s Submission.

10. The 3rd Defendant in their submissions filed on 27th March, 2017 relied on Section 3 of the Civil Procedure Act that provides that a court’s jurisdiction to entertain a suit is conferred by law. They relied on the Supreme Court of Kenya case; Re The Matter of the interim Independent Electoral Commission (2011) eKLR at Paragraph 30 the seven (7) judge bench held;

“......that jurisdiction flows from the law, and the recipient-Court is to apply the same with any limitations embodied therein. Such a Court may not arrogate to itself jurisdiction through the craft of interpretation, or by way of endeavours to discern or interpret the intentions of Parliament, where the wording of the legislation is clear and there is no ambiguity. In the case of the Supreme Court, the Court of Appeal and High Court, their respective jurisdictions are donated by the Constitution.’’

11. They went on to submit that the jurisdiction of this court is provided under Article 165(3) of the Constitution of Kenya .Article 165(3)(b) subject to clause 5,the High Court has jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened. The suit herein having been an employer employee relationship ought to be entertained by the Employment and Labour Relations Court, created by the Employment and Labour Relations Court Act, Cap 234B Laws of Kenya enacted by Parliament pursuant to Article 162(2) of the Constitution.

12. Section (12)(1) of the Employment and Labour Relations Act expressly provides that the Employment and Labour relations court shall have the jurisdiction to entertain matters relating to employment and labour relations including disputes relating to or arising out of employment between an employer and an employee.

13. Further they went on to submit that this court lacks jurisdiction to entertain this suit pursuant to the provisions ofSection 3(2) of the Public Authorities Limitation Act,Cap.39 Laws of Kenya as read withSection 90of theEmployment Act 2007.

Section 3(2)Cap 39 provides;

“No proceedings founded on contract shall be brought against the Government or a local authority after the end of three (3) years from the date on which the cause of action accrued.’’

Section 90 of the Employment Act,further provides for a limitation period of 3years for instituting actions in employment relations.

14. They stated that the Acts of the defendant forming the basis of this suit as against the 3rd Defendant arose out of a decision of the 3rd defendant to dismiss the plaintiff from service on 2nd May 2009 yet the plaintiff instituted this suit 7 years,1 month and 22 days later.

15. It was their submission that the import of the time limitation in regard to this suit is a nullity as it offends the law. They placed reliance on the decision of Mary Wambui Munene –Vs- Peter Gichuki King’ara & 2 others (2014) eKLR and Macfoy –Vs-United Africa Co. Ltd (1961)3 All E.R,In the latter case Lord Denning held:

“If an act is void, then it is in law a nullity. It is not only bad, but incurably bad. There is no need for an order of the Court to set it aside. It is automatically null and void without more ado, though it is sometimes convenient to have the Court to declare it to be so. And every proceeding which is founded on it is also bad incurably bad, you cannot put something on nothing and expect it to stay there. It will collapse.’’

16. In conclusion they submitted that the application before court is wrongly filed in this court because this court has no jurisdiction to entertain this suit and therefore prayed to court to dismiss the Plaintiff’s plaint dated 8th March 2017 be dismissed with costs to the 3rd defendant.

1st and 2nd Defendant’s Submission

17. They filed their Submissions on 11th April 2017 and went on to submit on the issue of jurisdiction of court and they placed reliance on the definition of the word jurisdiction as said in Guaranty Trust Co. of New York-Vs-Hannay & Co (1915)2 KB 536 at 563

“The word “jurisdiction’’ and expression “the court has no jurisdiction’’ are used in two different senses which I think often leads to confusion. The first and in my opinion, the only really correct sense of the expression that the court has no jurisdiction is that it has no power to deal with and decide the dispute as to the subject matter before it, no matter in what form or by whom it is raised. But there is another sense in which it is often used, i.e. that although the court has power to decide the question it will not according to its settled practice do so except in a certain way and under certain circumstances.’’

18. Placing reliance on the Supreme court decision ofRe: The Matter of the Interim Independent Electoral Commission; (Supra) they went on to acknowledge that jurisdiction is everything and a court without jurisdiction has no power to take one more step.

19. On the Issue of the nature of the claim being employment and labour related as argued by the 3rd Respondent, the 1st and 2nd defendants submitted that such was an incorrect position. They relied on Articles 162 and 165of the Constitution. They submitted that the present claim is not based on breach of contract of employment and therefore does not fall within the jurisdiction of the Courts contemplated under Article 162(2) of the Constitution.

20. They went to say that Article 162(2)provides that that parliament shall establish courts with the status of the High Court to hear and determine employment and labour relations and Environment and the use and occupation of, and title to land, while on the other hand Article 165(5) provides that High Court shall not have jurisdiction in respect of matters falling within the jurisdiction of the courts contemplated in article 162(2).

In the case of United States International University (USIU) –Vs- Attorney General 2012 eKLR Justice Majanja held that; the High Court lacks jurisdiction to deal with matters of employment and labour relations.

21. The 1st and 2nd defendants went on to state that the claim before this court is one of malicious prosecution. Referring to the prayers in the plaintiff’s amended plaint he indicated that the claim was not one of unfair, unlawful, wrongful termination or breach of contract and in essence the provisions of Section 3(2) of the Public Authorities Limitation Act and Section 90 of the Employment and Labour relations do not apply.

22. They went on to state that the submissions by the 3rd Defendant were absurd and such will give rise to forum shopping thereby undermining a stable and consistent application of Articles 162 and 165 of the Constitution.

23. In conclusion they submitted that the High Court has jurisdiction to entertain the claim which is before it and they prayed that the preliminary objection be dismissed and the suit do proceed as filed.

Plaintiff’s Submission

24. The plaintiff filed his submissions on 25th June 2017 and submitted that the claim was not time barred because the criminal trial ended on 12th November 2014 when the claimant was acquitted and therefore the cause of action arose on acquittal and he filed the suit on 24th June 2015 hence he was still within the statutory period of 3 years.

25. On jurisdiction he submitted that this was a tort claim and that he had filed an employment suit strictly against the 3rd Defendant in a separate suit at Nairobi Employment and Labour Relations Court ELRC Cause No.685 of 2017. He went to say that amended plaint did not raise any employment issues nor seek any prayer concerning employment that should be sought in the Employment and Labour Relations Act

Determination

26. Having considered the submissions by the defendants I find that the main issue for determination is:-

i.Whether in the circumstances of this matter the preliminary objection should be allowed?

The ingredients of a preliminary objection are well established in the celebrated authority of Mukhisa Biscuit Manufacturing Co. Ltd Vs. West End Distributors Company Limited, (1969) E.A. 696as follows;

“So far as I am aware, a preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court, or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.”

Further a preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of the judicial discretion. The improper raising of points by way of preliminary objection does nothing but unnecessarily increase costs and, on occasion, confuse the issues. This improper practice should stop.”

27. The success or otherwise of the preliminary objection by the 3rd Defendant will depend on the manner in which the Plaintiff’s amended plaint dated 1st March, 2017 is couched. A perusal of the said amended plaint clearly reveals that the Plaintiff’s claim is based on tort. Indeed the Plaintiff claims general damages for malicious prosecution against the Defendants and has pleaded particular of malice against each of the Defendants. It is only paragraph 13 of the amended plaint that the plaintiff alludes to a failure by the 3rd Defendant to reinstate him into employment but otherwise the body of the amended plaint and prayers relate mainly to a claim for both general and special damages for unlawful arrest and malicious prosecution. Hence it is untenable for the 3rd Defendant to mainly rely on the isolated paragraph 13 of the amended plaint to raise issue of this court’s lack of jurisdiction when in actual fact the Plaintiff’s case is mainly hinged on a claim, in tort. Had the Plaintiff in the end sought for reinstatement and payment of accumulated salaries against the 3rd Defendant then it could then be held that this court lacked jurisdiction to entertain the suit as against the 3rd Defendant. Counsel for the Plaintiff has submitted that indeed the Plaintiff has already instituted suit against the 3rd Defendant before the Employment and Labour Relations Court being NBI ELRC 685 of 2017. That being the position, I find the Plaintiffs claim against the 3rd Defendant herein is purely on the issue of unlawful arrest and malicious prosecution for which this court has jurisdiction to entertain. As regards the issue of limitation it is noted that the Plaintiff had been arraigned before Makindu Law Courts vide Criminal case No. 283 of 2009 in which he was convicted but which conviction was quashed and sentence set aside by the High Court on the 12/11/2014. This suit was instituted in June, 2015. The Plaintiff could only contest the actions of the Defendants upon being acquitted on the 12/11/2014 since in a suit based on a claim for malicious prosecution, the Plaintiff must establish that the Prosecutions was subsequently terminated in his favour. The acquittal took place on the 12/11/2014 and this being a claim in tort, the limitation period provided is three (3) years. Hence the Plaintiff’s suit having been filed in June, 2015 is not time barred as contended by the 3rd Defendant. The 3rd Defendant’s role in the unlawful arrest and malicious prosecution is closely tied and connected with the rest of the Defendants and therefore the request by the 3rd Defendant to be extricated from the suit should not be allowed at this juncture and that the 3rd Defendant must wait for the determination of the suit.

28. In the result it is the finding of this court that the 3rd Defendant’s preliminary objection dated 24/03/2017 lacks merit. The same is dismissed with costs to the Plaintiff and 1st and 2nd Defendants.

Dated, signed and delivered atMachakosthis3rdday ofNovember, 2017.

D.KEMEI

JUDGE

In the presence of :

No appearance for Akello for the plaintiff

No appearance for Owuor for the 1st Defendant

Oyucho for the 3rd defendant

No appearance for Attorney General - 4th defendant

Mungai - Court Assistant