[2020] KEELRC 1042 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT

AT NAIROBI

CAUSE NO. 50 OF 2015

(Before Hon. Lady Justice Maureen Onyango)

KENYA SCIENTIFIC RESEARCH INTERNATIONAL TECHNICAL

AND INSTITUTIONS WORKERS UNION................................1ST CLAIMANT

JELINA MAITHYA........................................................................2ND CLAIMANT

CHRISTINE GOLEHO..................................................................3RD CLAIMANT

REBECCA BOSIBORI...................................................................4TH CLAIMANT

MARTIN ODUOR...........................................................................5TH CLAIMANT

VERSUS

JUDITH AKINYI WEYA............................................................1ST RESPONDENT

NATIONAL TRANSPORT AND SAFETY AUTHORITY.... 2ND RESPONDENT

REAL TIMES AND MADA MOTORS LIMITED..................3RD RESPONDENT

JUDGMENT

The cause herein was instituted vide the Memorandum of Claim dated 19th January 2015, to challenge the alleged fraudulent transfer of motor vehicle registration number KBX 181N to the 1st Respondent and her ownership of the motor vehicle. The claim was amended vide the Amended Memorandum of Claim filed on 5th July 2018 wherein the Claimants sought the following remedies-

a. A mandatory order to compel the 1st Respondent, and or agents and or servants and or representatives to immediately surrender and return and or restore and or deliver and or release the 1st Claimant’s motor vehicle registration number KBX 181N to the Claimants.

b. A mandatory order to compel the 3rd Respondent, and or agents and or servants and or representatives to immediately surrender and return and or deliver and or release to the Claimants the original logbook of motor vehicle registration number KBX 181N.

c. A permanent injunction restraining the Respondents and or their agents and or servants and or representatives from transferring and or alienating and or vandalizing and or wasting or in any manner whatsoever interfering with the 1st Claimant’s ownership and possession of motor vehicle registration number KBX 181N.

d. A declaration that motor vehicle registration number KBX 181N belongs to the 1st Claimant union as initially registered in the name of the 5th Claimant in trust and the transfer and registration of the same in the name of the 1st Respondent isnull and void.

e. An order for cancellation of logbook number K712572B issued on 13th November 2014 and issuance of new logbook in the name of the 1st Claimant and or the 5th Claimant in trust for the 1st Claimant.

f. The deputy registrar of the Employment and Labour Relations Court do sign transfer to give effect to the order above.

g. Damages for loss of user motor vehicle registration number KBX 181N at the rate of Kshs. 10,000. 00 per day month (sic) from 11th December 2014 until judgment in this cause.

h. Costs in the cause.

i. Interest of the cause at court rates.

j. Any other relief as this court deems fair and just to grant.

Claimant’s Case

The 1st claimant is a trade union duly registered in Kenya while the 5th claimant is its General Secretary and Chief Executive Officer. The 2nd, 3rd and 4th claimants are registered Trustees of the 1st claimant as provided under Section 36 of the Labour Relations Act. The Claimants aver that the 5th Claimant purchased a motor vehicle registration number KBX 181 N from the 3rd Respondent which was registered in his name with the approval of the 2nd, 3rd and 4th Claimants’ to hold in trust for the 1st Claimant.

It is averred that upon transfer, the 3rd Claimant issued the 5th Claimant with a scanned copy of the logbook and retained the original. While the Claimants’ were in the process of recovering the logbook from the 3rd Respondent, the 1st Respondent took possession of the vehicle. The incident was reported to the Kisumu Central Police Station vide OB 48/11/12/2014 but no action has been taken to date.

On 22nd December 2014, the 5th Claimant visited the 2nd Respondent’s offices to follow up on the original logbook but was informed that it was in the 3rd Respondent’s custody. He was also informed that the 1st Respondent had issued the 3rd Respondent with a transfer that had been signed in her favour, by him. It is averred that the said transfer is a forgery.

The 5th Claimant demanded the issuance of the transfer documents from the 2nd Respondent but his efforts proved futile as the 2nd Respondent declined. Consequently, the Claimants registered a caveat against the motor vehicle but avers that only a court order can stop the transfer.

The Claimants aver that there is collusion between the police and the 1st Respondent to institute criminal proceedings against the 5th Claimant to stop him from pursuing the claim for the motor vehicle. This, it is averred, is evidenced by the reluctance of the police to take action against the 1st Respondent.

The Claimants aver that since the institution of this suit, the Respondents have fraudulently caused the transfer of the motor vehicle to the 1st Respondent and backdated the transfer to 13th November 2014.

The Claimants aver that their activities have been halted due the absence of their motor vehicle and the 1st Claimant has resorted to hiring another vehicle at a monthly fee of Kshs.10,000. 00.

1st Respondent’s Case

In her response filed on 25th March 2019, the 1st Respondent avers that the 5th Claimant does not have locus standi to institute this cause as he does not have authority from the 1st, 2nd and 3rd Claimants. It is her position that only the 1st Claimant has the locus standi as it is a legal entity with the legal capacity to sue and be sued in its own right.

The 1st Respondent contends that she is the registered owner of motor vehicle registration number KBX 181N. She avers that clause 23A of the 1st Claimant’s constitution provides that where a Union purchases and/or owns property, it will be held jointly in trust by the union's three national trustees and not the secretary general.

The 1st Respondent contends that the minutes of the meeting that

allegedly took place on 26th July 2014 are a forgery as no meeting took place.

She contends that she gave the 5th Claimant a sum of Kshs.950,000. 00 in cash. Thereafter, they proceeded to Mombasa to purchase the motor vehicle. It is her position that she did not make the payment of the motor vehicle to the 3rd Respondent as anticipated, since she had already paid the 5th Claimant. It is averred that the 1st and 3rd Respondents executed the sale agreement dated 2nd August 2014 for the sale of the said motor vehicle, in the presence of Fredrick Ouma.

It is the 1st Respondent’s case that the 3rd Respondent had informed her that the 5th Claimant had made enquiries regarding the motor vehicle and caused the logbook to be registered in his name. Consequently, she raised this issue with him and it was rectified by causing the motor vehicle to be registered in her name. the 1st respondent also avers that it was the 3rd Respondent who was informed of the error, and who lawfully rectified it and caused the motor vehicle to be registered in her name. Thereafter, she was presented with the current log book. She asserts that she is a bona fide purchaser of the motor vehicle which has always been in her possession.

The 1st Respondent contends that the keys to the motor vehicle were obtained peacefully and denies the allegation of a robbery. She urges this Court to dismiss the claim with costs.

3rd Respondent’s Case

In its response filed on 7th March 2018, the 3rd Respondent contends that the 5th Claimant and 1st Respondent attended its showroom in Mombasa on 2nd August 2014 and expressed interest to purchase motor vehicle registration number KBX 181N.

The 3rd Respondent avers that they entered into an agreement with both parties but they did not have the money to make the payment. It is averred that the 1st Respondent remained behind so as to await completion of the payment. It is contended that the sale agreement was executed by the 1st Respondent with the 5th Claimant’s approval, who had indicated that she was his wife.

Thereafter, payment of the purchase price was made in two instalments of Kshs.600,000. 00 and Kshs.350,000. 00. The motor vehicle was then released to the 1st Respondent and the 5th Claimant collected the logbook which was in his name, as instructed by the parties. The 3rd Respondent contends that it was not aware that the 1st Claimant was the actual purchaser of the vehicle as it only had dealings the 5th Claimant and 1st Respondent.

It is the 3rd Respondent’s position that it does not have the power to transfer ownership of the vehicle as it no longer has possession of the same hence the orders of injunction sought against it are non-consequential.

The 2nd Respondent did not file a response in the matter. The suit was disposed of by way of written submissions, but only the Claimants filed submissions on 19th November 2019. The 1st respondent was given time to file by close of day on 16th December 2019 but did not.

Submissions

The Claimants submit that they have the locus standito institute this suit to protect the Union’s property as provided under Article 22 of the Constitution.

They submit that the 5th Claimant is the rightful owner of motor vehicle registration number KBN 181N as the logbook was registered in his name to hold in trust for the 1st Claimant. As such, the 3rd Respondent had no legal authority to transfer the property to the 1st Respondent and only the 2nd Respondent has the authority to rectify the registration of the motor vehicles. They submit that the 1st Respondent has not adduced any evidence that she paid the purchase price of the motor vehicle.

It is their submission that the 1st Respondent has admitted to fraudulently transferring the vehicle to herself in paragraph 30 (ii) of her response of 18th March 2019. They aver that the 5th Claimant was robbed of the possession of the vehicle which later resurfaced in the 1st Respondent’s possession.

The Claimants submit that they have proved the 5th Claimant’s ownership of the motor vehicle hence entitled to the remedies sought. They further submit that they have proved the additional costs incurred in hiring a vehicle for its operations hence should be awarded the damages for loss as claimed.

Analysis and Determination

I have carefully considered the pleadings filed by the parties, their evidence and submissions. The issues of determination are: -

a. Whether the Claimants have the locus standi to institute this suit on behalf of the 1st Claimant.

b. Whether this Court has the jurisdiction over this matter.

c. Who is the rightful and legal owner of motor vehicle registrationnumber KBX 181N?

d. Whether the Claimants are entitled to the reliefs sought.

Locus Standi

The 1st Respondent avers that the 5th Claimant does not have locus standi to institute this cause as he does not have authority from the 1st, 2nd and 3rd Claimants. Further, that only the 1st Claimant has the locus standi as it is a legal entity with the legal capacity to sue and be sued in its own right.

On the other hand, the Claimants submitted that the 2nd to 5th Claimants were the 1st Claimant’s officials being National Trustees and Secretary General/Chief Executive Officer respectively. This assertion has not been controverted by the Respondents.

The issue of the locus standiwas not conclusively addressed by the Makau J. in his ruling delivered on 15th April 2015 in relation to the Respondents preliminary objection on jurisdiction which was on grounds that the issues raised were not purely on points of law. As such, the same is for determination by this Court.

There is no legal provision barring union officials or trustees from being enjoined to a claim filed by or against the union. No evidence was adduced by the 1st Respondent to controvert the Claimants’ assertion that the 2nd to 5th Claimants were union officials. Further, the 1st Claimant is a party to this suit, jointly with the 5th claimant. As registered trustees of the 1st claimant, the 2nd to 4th claimants all have locus standi to file the instant suit under Sections 37, 47 and 62 of the Labour Relations Act. I thus find no merit in the objections by the 1st respondent to the locus standi of the 2nd to 5th claimants to file this suit.

Jurisdiction

Like the issue of locus standi,the issue of jurisdiction was not delved into by the Makau J. in his ruling delivered on 15th April 2015. It thus falls on this Court to address the same.

Section 12 of the Employment and Labour Relations Court provides for jurisdiction of this court as follows: -

1. The Court shall have exclusive original and appellate jurisdiction to hear and determine all disputes referred to it in accordance with Article 162(2) of the Constitution and the provisions of this Act or any other written law which extends jurisdiction to the Court relating to employment and labour relationsincluding—

a. disputes relating to or arising out of employment between an employer and an employee;

b. disputes between an employer and a trade union;

c. disputes between an employers’ organisation and a trade union’s organisation;

d. disputes between trade unions;

f. disputes between employer organisations;

f. disputes between an employers’ organisation and a trade union;

g. disputes between a trade union and a member thereof;

h. disputes between an employer’s organisation or a federation and a member thereof;

i. disputes concerning the registration and election of trade union officials; and

j. disputes relating to the registration and enforcement of collective agreements.

Section 47 of the Labour Relations Act provides as follows-

1. The Industrial Court may—

a. order any person who has in his possession or control any property of a trade union, employers’ organisation or federation in violation of its rules or who has unlawfully expended or withheld its moneys, to deliver that property or pay that money to its trustees; and

b. suspend any official who contravenes paragraph (a).

2. A complaint under this section shall be brought by—

a. the Registrar; or

b. a member of a trade union, employers’ organisation or federation at the time of bringing the complaint of the trade union or employers’ organisation concerned.

This court therefore has jurisdiction to hear this matter by virtue of Section 12(1) of the Employment and Labour Relations Court Act and Section 47 of the Labour Relations Act.

Ownership of Motor Vehicle KXB 181N

The 3rd respondent’s Director KHADIJA MADA made a sworn witnessstatement in which she states that the vehicle was registered in the name of the 5thclaimant. The averments of the 1strespondent that the 3rdrespondent rectified the logbook to bear her name are denied and would legally not be possible after the logbook was issued in the name of the 5thclaimant.

The said KHADIJA MADA further confirmed the purchase price was paid in two instalments of Kshs.600,000. 00 and Kshs.350,000. 00 which corresponds with debits in the 1st claimant’s bank account as per bank statements. The 1st respondent’s averments that she gave the 5th claimant Kshs.950,000. 00 is not corroborated by any evidence. She did not state where the money came from and why such an amount of money would be exchanged in an electrics shop in Kisumu in April 2014 if it was intended for purchase of a motor vehicle in Mombasa in August 2014. The whole of the affidavit evidence of the 1st respondent and the affidavits deponed by her witness do not explain how the 1st claimant paid for the motor vehicle and how the motor vehicle which was first registered in the name of the 5th claimant was inexplicably transferred to the 1st respondent.

For the foregoing reasons, I find that the true owner of the motor vehicle KXB 181N is the 1st claimant having paid for the purchase price of the same and that the 5th claimant, as the General Secretary of the 1st claimant, was registered as owner of the same in trust for the 1st claimant as beneficial owner.

Conclusion

Having found that the 1st claimant is the beneficial owner of motor vehicle registration number KXB 181N and that the 1st respondent failed to prove how she came to be registered as owner thereof, I declare the registration of the 1st respondent as owner of the motor vehicle registration no. KXB 181N null and void. I direct the 3rd respondent to amend the registration particulars thereof to reflect the 1st claimant as the owner and issue a fresh logbook in the name of the 1st claimant.

The claimants did not prove the prayer for damages for loss of use. The same is dismissed.

Each party shall bear its costs.

DATED, SIGNED AND DELIVERED AT NAIROBI ON THIS 22ND DAY OF MAY 2020

MAUREEN ONYANGO

JUDGE

ORDER

In view of the declaration of measures restricting court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21st April 2020, that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules which requires that all judgments and rulings be pronounced in open court. In permitting this course, this court has been guided by Article 159(2)(d) of the Constitution which requires the court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 1B of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) which impose on this court the duty of the court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes.

MAUREEN ONYANGO

JUDGE