[2012] KEHC 4509 (KLR)

Editorial Summary

1. Civil Appeal

2. Subject of subordinate court case

EMPLOYMENT CONTRACT

2. 1 Unlawful termination of employment contract.

2. 2 Employee, original plaintiff files suit in 1988,

in the Magistrate Court.

2. 3 Defence calls six or more witnesses to confirm

allegation that termination of employment was

lawful due to gross misconduct.

2. 4 After that Hon. Magistrate holds that the

termination of employment of the original

plaintiff was lawful.

2. 5 Judgment: suit dismissed (8 July 1994).

3. Original Plaintiffs/Appellant – Appeals

3. 1 Appeal filed out of time with

leave of court (Misc. 1155/94)

3. 2 Appeal filed in 291/96

3. 3 Hearing before Amin J

4. Judgment of appeal 8 November 2000

Amin J

4. 1 The appeal is devoid of merit and is dismissed

.... no orders as to costs.

4. 2 In the peculiar circumstances of this appeal

it is pertinent that the appellant’s cause of action

and claim be fully considered De novo.

5. Appellant understands:

5. 1 De novo to mean rehearing of appeal a fresh

before the High Court.

5. 2 Appellant takes dates before Aganyanya J on

15th May 2000 and 24th September, 2000.

5. 3 Appellant on being informed matter on appeal finalized

but must return to subordinate court, understands that

appeal was allowed.

5. 4 Appellant draws up a decree called “amended decree”

4th June 2004.

5. 5 Respondent employee writes to the court,

Deputy Registrar on July 2nd, 2010 to verify decree.

5. 6 Transpires there is no decree to file.

5. 7 Respondent/Employee files application to

expunge decree.

6. Application 9th March 2012

6. 1 Whereas there is a purported decree dated

8th April, 2008 and subsequent application for execution.

6. 2 Whereas no such decree exists.

The Appellant employer prays that the amended decree

and application for execution be expunged from the court record and be declared null and void ibi initio.

6. 3 That court to enquire into source of said decree and application for execution together with certification stamp affixed byDeputy Registrar.

7. In reply

Employee

7. 1 Alleges the documents are genuine.

7. 2 Industrial claim to be heard De novo.

7. 3 Hon. Aganyanya head the former Employee in

absence of the employer.

7. 4 Prays application be dismissed and he be now

awarded Ksh.11. 4 Million.

8. Held:

8. 1 The former employee’s file does not disclose any decree

of 11. 4 million; this being a fictitious figure.

8. 2 The Hon. Mr. Justice Aganyanya never held actual

hearing for former employer. This was to be in

subordinate court.

8. 3 Application of 9th March 2012 be allowed.

a) That the purported amended decree dated 8th April 2009 and subsequent application be and is declared null and void ibi initio.

b) That the Police Commissioner do investigate the decree and application for execution and to enquire as to its source and in particular the certification stamp purportedly affixed by the Deputy Registrar.

(c ) To further look into the mental status of the Employee.

9. Advocates:

i) Gabriel Shibutse appellant/respondent present in person

ii) V K Mungai holding brief for A N Thengei instructed by M/s Waruhiu K’Owade & Nganga & Co Advocates forRespondent/Original defendant/applicant

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL APPLICATION 291 OF 1996

GABRIEL A. SHIBUTSE........APPELLANT/ORIGINAL PLAINTIFF/RESPONDENT

VERSUS

KENYA PIPELINE CO. LTD....RESPONDENT/ORIGINAL DEFENDANT/APPLICANT

R U L I N G

I.INTRODUCTION

1. The applicant/respondent (herein referred to as the employer) had been sued in the year 1988 by their former employee, the respondent/appellant (herein referred to as the former employee) for the unlawful and wrongful termination of employment. The Hon. Trial Magistrate upon hearing both parties held in her judgment of

8th July 1994 that the termination of the employment was lawful against the employee. The suit was dismissed.

2. The employee filed appeal out of time but with leave of the court

(Misc 1155/94). The CA 291/96 came for hearing before Amin J.

3. The Hon. Judge upon hearing the appeal held in his judgment of

8th November 2000 that:

3. 1“… the appeal is devoid of merit and is dismissed … no orders as to costs.

3. 2[whereas] in the peculiar circumstances of this appeal, it is pertinent that the appellant’s cause of action and claim be fully considered De novo.”

4. The appellant understood this to mean that De novo was re-hearing the appeal afresh before the High Court as opposed to the suit before the subordinate court.

5. The appellant took dates before the High Court on 15th May 2000 and on

24th September 2000. In both instances, he was notified that the appeal was finalized and there was nothing left. That he required to return to the subordinate court for hearing.

6. The former employee understood this to mean that his appeal was allowed.

7. The former employee then presented to court a decree called “amended decree dated 4th June 2004 and dated 4th April 2008. ” He presented this document to his employer that demands Ksh. 11,400,000/- be paid to him. The employer wrote to court on 2nd July 2010 seeking the verification of this new decree.

8. It transpires that from the court records there was no decree on the file.

9. The employer filed an application to expunge the decree dated

9th March 2012.

Application dated 9th March 2012

10. The appeal originally filed by the former employee had been dismissed. The former employee brought a new decree dated 8th April 2008 and subsequent application for execution. This decree did not exist on the court file nor orders made by any judicial officers.

11. The employer in its application prayed that the amended decree and application for execution be expunged from the court record and be declared null and void ibi initio.

Further that this court enquire into the source of the said decree and application for execution together with the certification stamp affixed by the deputy registrar.

12. In reply to this application, the former employee alleges the document is genuine. He understood his case was to begin De novo. That Anganyanya J heard the employee in absence of the employer

13. He prayed the application before court be dismissed and he be awarded Ksh. 11. 4 million.

FINDINGS

14. The files before this court does not disclose any decree of Ksh. 11. 4 million. This figure is fictitious.

15. Whereas the employee appeared before Aganyanya J, at no time did the Hon. Judge hear the said employee. He instead informed the employee that he was to start his case afresh De novo in the magistrate’s court. There was nothing left in the appeal which was “functus officio”.

16. The allegations raised in the application are extremely serious. This court would allow the application dated 9th March 2012, namely:

a)That the purported amended decree dated 8th April 2008 and subsequent application for execution be and is hereby declared null and void ibi initio.

b)That the police do investigate the decree and application for execution and enquire as to its source and in particular the certification stamp purportedly affixed by the deputy registrar within 120 days.

c)I further make orders that the mental status of the former employer Gabriel A Shibutse be looked into.

d)Costs to the applicant.

DATED THIS 28TH DAY OF MARCH 2012 AT NAIROBI

M.A. ANG’AWA

JUDGE

Advocates:

i) Gabriel Shibutse appellant/respondent present in person

ii) V K Mungai holding brief for A N Thengei instructed by M/s Waruhiu K’Owade & Nganga & Co Advocates forRespondent/Original defendant/applicant