[2017] KEHC 1002 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

CIVIL APPEAL NO. 143 OF 2015

ANDREW MWAMBURI MWASINDE.........................................APPELLANT

VERSUS

TRUSTEES – NATIONAL SOCIAL SECURITY FUND..........RESPONDENT

(An appeal from the ruling of Hon. Nyakweba, Principal Magistrate delivered on 25th August, 2015 in Mombasa RMCC NO. 512 of 2015).

JUDGMENT

1. On 17th September, 2015 the appellant filed a memorandum of appeal raising the following grounds of appeal:-

(i) The learned trial Principal Magistrate erred in law in failing to address and decide the issue before him and dismissing the Appellant/Plaintiffs’ (sic) case without considering it on its merit or at all;

(ii) The learned trial Principal Magistrate misdirected himself in law and fact by stating that the entire suit and the application dated 5th May, 2015 is (sic) struck out for being statute barred;

(iii) That learned trial Principal Magistrate erred in law and fact by disregarding section 42(i) and (h) (sic) of the Limitation of Actions Act Cap. 22 of the Laws of Kenya and instead he (sic) dismissed the Appellant/Plaintiff’s entire suit; and

(iv) The learned Principal Magistrate erred in law in failing to consider the fact that the Appellant/Plaintiff’s case is uncontroverted and indeed the evidence on record proves the Appellant/Plaintiff’s claim to the required standard.

For the above reasons, the appellant prays for this court to:-

(a) Set aside the decision of the lower court made on 25th August, 2015 and enter judgment for the appellant/plaintiff in the sum of Kshs. 60,237. 80; and

(b) Award costs of the lower court case and the appeal to the appellant.

2. At the hearing of this appeal, the appellant's Learned Counsel, Mr. Muyala, relied on his written submissions filed on 31st January, 2017. He condensed the 4 grounds of appeal into one. The highlight of his submissions was that the Hon. Magistrate erred in striking out the suit for being statutorily time barred. He stated that in the plaint filed on 24th March, 2015, the appellant claims contributions he made to the defendant (respondent) when he was working as an employee of EMCO Glassworks Ltd., wherein he contributed Kshs. 60,377/=. It was submitted that when the appellant claimed the said amount from the respondent, he was told that he was paid Kshs. 59,023. 55 on 1st March, 1992. He stated that the appellant was in employment up to June 1992.

3. Counsel further submitted that the Hon. Magistrate on 25th August, 2015 struck out the suit and an application for summary judgment and held that the suit was statutorily time barred. Counsel contended that the Hon. Magistrate relied heavily on the provisions of Section 3 of the Public Authorities Limitation Act, Cap 39 which are not applicable to the respondent. He added that the respondent is governed by the National Social Security Fund Act and that Section 42(1)(h) of the Limitation of Actions Act exempts the National Social Security Fund (NSSF) from limitation on claims for contributions.

4. Mr. Muyala urged this court to reinstate the case in the lower court as the appellant who is an old man of 78 years of age stands to lose his contributions remitted to the respondent. Counsel relied on the authorities cited in his written submissions. He prayed for the appeal to be allowed.

5. In response to the foregoing, Ms. Ombati, Learned Counsel for the respondent stated that although the Limitation of Actions Act in section 42(1)(h) provides that there is no limitation in bringing a claim for recovery of contributions, equity does not aid the indolent. She submitted that the cause of action arose in the year 1992, yet the suit herein was filed in the year 2015. In submitting that the defence filed by the respondent raises triable issues, she informed the court that the respondent had in its defence averred that the amount being claimed was paid. She prayed for non-reinstatement of the application for summary judgment.

6. Mr. Muyala on his part submitted that he did not address the issue of the striking out of the defence in his written submissions. He indicated that the company the appellant was working for went under, and he was declared redundant. As at that time he had not reached the retirement age. In the said Counsel's view, the issue of delay in the appellant pursuing his pension does not arise.

ANALYSIS AND DETERMINATION

The issue for determination is if the provisions of the Public Authorities Limitation Act, Cap 39 apply to retirement benefit claims filed against The Board of Trustees of the National Social Security Fund.

7. The appeal herein stems from the ruling of 25th August, 2015 following an application filed on 5th May, 2015 by the appellant in the lower court. It sought orders for striking out of the defence for not raising triable issues. It also sought orders for entry of judgment for the appellant as against the respondent for the sum of Kshs. 60,737. 80 plus costs and interest as prayed in the plaint.

8. The Hon. Magistrate considered the grounds of opposition and zeroed in on the issue of limitation of actions. He held that the respondent was a public authority whose limitation is governed by the Public Authorities Limitation Act, Cap 39. The Hon. Magistrate in his ruling held that since the appellant retired in June 1992, the limitation period ended in the month of May 1995 but the plaint was filed on 24th March, 2015, almost 20 years late. The said plaint and the application dated 5th May, 2015 were struck out. Costs were awarded to the respondent.

9. In writing this judgment, I bear in mind the duty of the 1st appellate court as enunciated in the case of Selle vs Associated Motor Boat Co. [1968] EA 123.

10. A perusal of the Public Authorities Limitation Act, Cap 39 which the Hon. Magistrate relied upon in striking out the suit and the application dated 5th May, 2015 indicates in its preamble that it is an Act of Parliament to provide for the limitation of proceedings against the Government and a local authority, and for purposes incidental to and connected with the foregoing. Section 2(2)(a) of the said Act provides that “proceedings against the Government includes proceedings against the Attorney General or any Government department or public officer as such.”(emphasis added).

11. The preamble to the Limitation of Actions Act, Cap 22, Laws of Kenya indicates that it is an Act of Parliament to prescribe periods for limitation for actions and arbitrations, and to make provision concerning the acquisition of easements by prescription, and for matters incidental thereto and matters connected therewith.

12. Section 42(1)(h) of the Limitation of Actions Act provides as follows:-

"This Act does not apply to:

(h) proceedings brought under the National Social Security Fund Act for recovery of any contributions or any other sum and any penalty or interest thereon."

13. Although the intents and purposes of the Public Authorities Limitation Act is to set limitation for proceedings instituted against the Government, a reading of the provisions of Section 42(1)(h) of the Limitation of Actions Act shows that any claims for recovery of any contributions or any other sum and any penalty or interest that fall under the National Social Security Fund Act are not governed by the Public Authorities Limitation of Actions Act. If the provisions of the said Act were applicable to the respondent, the legislature would not have made a specific provision for proceedings brought against the NSSF under section 42(1)(h) of the Limitation of Actions. This therefore excludes the respondent from the application of the provisions of the Public Authorities Limitation Act in so far as retirement contributions are concerned.

14. It is my finding therefore that Counsel for the appellant was correct in submitting that section 42(1)(h) of the Limitations of Actions Act excludes civil proceedings instituted under the National Social Security Fund Act, for the recovery of any contributions or any other sum and any penalty or interest thereon from limitation. For the said reason, the appellant’s action of filing a suit on 24th May, 2015 cannot be said to have been extinguished by the effluxion of time. It is thus clear that the Hon. Magistrate erred when he struck out the suit in the lower court on his interpretation of the above provisions of the law.

15. In the case of the County Council of Nyeri vs Board of Trustees, National Social Security Fund [2014] eKLR, the Court of Appeal when addressing the provisions of section 42(1)(h) of the Limitation of Actions Act held that any amount due for recovery under the provisions of the National Social Security Fund Act are not caught by the limitation period.

16. The appellant in his grounds of appeal has prayed for Judgment to be entered in his favour for the sum of Kshs. 60,237. 80 with costs of the lower court and of this appeal. The appellant also prays for costs. The appellant in seeking the foregoing orders is asking this court to perpetrate a travesty of justice by entering Judgment on a matter which was struck out by the lower court. I desist such an invitation for it would be unjust to the respondent. The Counsel for the respondent submitted that they had filed a defence wherein the respondent claims having made some payment to the appellant.

17. The issue of whether or not money is owed to the appellant by the respondent, is a matter that can only be determined after giving both parties an opportunity to be heard. For the said reason, I allow the appeal herein to the extent that I reinstate Mombasa RMCC No. 512 of 2015, Andrew Mwamburi Mwasinde vs Trustees – National Social Security Fund,for hearing and determination. The said case shall be heard by any other magistrate of competent jurisdiction, other than Hon. Nyakweba, whose orders form the basis of this appeal.

18. The appellant is granted costs of the application in the lower court dated 5th May, 2015 and of this appeal. Interest is also awarded at court rates.

DELIVERED, DATEDandSIGNED at MOMBASAon this 10th day of November, 2017.

NJOKI MWANGI

JUDGE

In the presence of:-

Mr. Paul Magolo holding brief for Mr. Asige for the appellant

Mr. Musili holding brief for Mr. Ombati for the respondent

Mr. Oliver Musundi - Court Assistant