[2019] KEHC 5789 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAKURU

CIVIL SUIT NO 23 OF 2018

LEE NJIRU...................... PLAINTIFF/RESPONDENT

VERSUS

J.K. LOKORIO...........1ST DEFENDANT/APPLICANT

PETER NG’ETICH... 2ND DEFENDANT/APPLICANT

RULING

1. The Plaintiff herein approached the Court by way of Plaint dated 26/06/2018. It seeks for judgment jointly and severally against the Defendants for:

a. A permanent injunction restraining the Defendants either by themselves or through their servants from frustrating the Plaintiff and uttering falsehoods against the Plaintiff.

b. General damages and aggravated damages.

c. To be ordered by the Court to tender a suitable apology and retraction of defamatory remarks and to declare that the Plaintiff is legally appointed to office until 30th June, 2020.

d. Interests on (b) above.

e. Costs.

f. Any other relief or further relief that this Honourable Court should deem fit to grant.

2. In brief, the factual allegations forming the substratum of the Plaintiff’s claim as they emerge from the Plaint are as follows:

a. The Plaintiff is employed as Press Secretary in the Office of the First Retired President of Kenya.

b. The Plaintiff’s term, as per the Plaint, is set to expire on 30/06/2020.

c. The 1st Defendant “caused to be written a letter dated 17/08/2017 by the Secretary to the Public Service Commission ordering the recovery of a motor vehicle assigned to the Plaintiff by virtue of his official position.

d. That subsequently, the 1st Defendant wrote to the Plaintiff (and copied to other individuals) suggesting that the Plaintiff was no longer in office as a public servant.

e. The 1st Defendant followed that up with an internal memo to the same effect.

f. The 1st Defendant repeated the allegations to the Daily Nation, a newspaper of general circulation in Kenya.

g. The 2nd Defendant recorded to the Police at Menengai Police Station words to similar effect; and further that he had been tasked to re-possess a government motor vehicle from the Plaintiff following the Plaintiff’s retirement.

3. The Plaintiff finds the representations made by the two Defendants to amount to defamation. He finds them to be defamatory because he insists that he is still a public servant deployed to the Office of the First Retired President. In subsequent filings, the Plaintiff has attached an appointment letter and a contract signed by the present Comptroller of State House presumably on behalf of the Republic.

4. The Defendants’ defence advances two main theories. First, they state variously that the alleged defamatory statements were, in fact, true statements which accurately describe the factual situation. Second, they state that they are not responsible for what was published in the Newspaper anyway.

5. At the close of the pleadings, the Defendants brought the present Application. The Application seeks two prayers:

1) That the plaintiff’s entire suit be struck out.

2) That cost of this Application and the suit be granted to the Defendant/Applicants.

6. The Defendants’ seek the dismissal of the suit on two grounds:

a. First, they argue that this Court has no jurisdiction to entertain the suit. Their argument in this regard is that this is really a suit sounding in employment law and that it should therefore have been filed at the Employment and Labour Relations Court (ELRC) by dint of Article 162(2) of the Constitution. The argument here is that though disguised as a suit sounding in the tort of defamation, the underlying claim is really one based on employment law.

b. Second, the Defendants argue that the suit is fatally defective because the affidavit filed to verify the Plaint violates section 4 of the Oaths and Statutory Declarations Act. This is because, the Defendants argue, while the Plaintiff’s pleadings have been drawn by the firm of Sheth and Wathigo Advocates, the verifying affidavit in support of the Plaint has been commissioned by one Ndeke Gatumu an Advocate who practices in the said firm of Sheth and Wathigo Advocates.

7. The Plaintiff has resisted the Application and filed Grounds of Opposition. Both parties filed Written Submissions pursuant to the Court’s directions. Neither party thought it necessary to orally highlight the Written Submissions.

8. The Application presents three issues for resolution:

a. Is the subject matter of this suit one which properly falls within the jurisdiction of the ELRC as opposed to the High Court?

b. If the answer to (a) above is in the affirmative, what is the proper course to take?

c. Is Verifying Affidavit sworn in support of the Plaint in violation of section 4 of the Oaths and Statutory Declarations Act and if so, does this render the entire suit fatally defective?

9. Turning to the first question, both parties have correctly urged the Court to begin with the locus classicus on the question of jurisdiction in Kenya: Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1).It was in that case that Justice Nyarangi uttered his famously iconic words:

Jurisdiction is everything….[and] a Court of law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.

10. It is with this in mind that the Defendants urge me to “down” my tools and find that the suit is one that belongs to the ELRC. They urge me to follow the Supreme Court’s edict in Samuel Kamau Macharia v Kenya Commercial Bank Limited & 2 Others [2012] eKLR that: “where the Constitution exhaustively provides the jurisdiction of a Court of law, the Court must operate within the constitutional limits. It cannot extend its jurisdiction through judicial craft or innovation….”

11. The Defendants’ argument is simple. They insist that the issues raised in the present case fall within the purview of the ELRC and should have been filed there. This is, they vehemently argue, “an employment dispute masquerading as a defamation claim.” The Defendants submit that a scrutiny of the Plaint reveals that the essence of the Plaintiff’s claim is that he is still employed as the Press Secretary to the former President Daniel Arap Moi. They point out that the real prayer sought by the Plaintiff is for a declaration that he is still legally appointed to the office until 30th June, 2020.

12. On the other hand, the Plaintiff claims that it has not been pleaded anywhere that there is any existing employer-employee relationship between the parties herein. This in itself ousts the jurisdiction of the ELRC in the matter, he argues. He relies on David Randu v Malindi Water & Sewerage Company Ltd (Mombasa ELRC Cause No. 110 of 2012) for the proposition that where there is no employment relationship between the parties, the ELRC does not have jurisdiction. The Plaintiff also relies on George Onyogo Ochieng’ v Chemelil Sugar Company Ltd (Kisumu ELRC Cause No. 54 of 2013). In this case, Wasilwa J. reasoned thus:

Under section 12 of the Industrial Court Act, 2011, the jurisdiction of this Court is well listed as it relates to disputes relating to or arising out of an employment between an employer and an employee and extends to unions and Federations. The matter before this Court however relates to parties who are not in any way in an employment relationship. It is therefore the finding of this Court that his Court lacks jurisdiction to entertain this claim which should be filed before a Civil Court. I therefore strike out the claim and order the claimants to pay costs to the Respondents herein.

13. In previous decisions, I have enunciated what I have described the Pre-dominant Purpose Test to be used in determining the question of jurisdiction in a case such as the one at hand. I first enunciated this test in the Pre-dominant Test enunciated by the Court in Suzanne Butler & 4 Others v Redhill Investments & Another [2017] eKLR.The rationale is as follows:

At the same time, however, it is imperative that a Court should not approach jurisdiction in an ultra-technocratic fashion as an essentialist parsing of sticks in a bundle. Jurisdiction is a substantive standard aimed at ensuring only the right court or tribunal clothed with the legitimate mandate deals with a dispute or controversy. It is not a jurisprudential thaumatrope to keep litigants guessing to which Court their controversy belongs at the pain of having their timeously pleaded case struck out for not pigeon-holing their claim in the correct box. The correct approach to jurisdiction is one which treats the question functionally as opposed to technically; one that looks at the constitutional objectives in creating equal status Courts as opposed to engaging in an essentialist, taxonomical and categorical analysis.

14. What the Court faced with such a situation does is to look at the entirety of the controversy in question functionally and substantially not formalistically. The real question to ask is what the real function of the suit is. If at its core the suit goes to determination of questions related to an employment relationship, then it belongs to the ELRC. This may be so even though the Plaintiff may through careful and deft drafting formally impleaded in such a way that the employer is technically not made a party to the suit. In other words, the test is a substantive one; not a formalist one.

15. In the present case, as outlined above (in paragraph 2 above), the controversy relates to two aspects:

a. Whether the Plaintiff was still in public employment as the Press Secretary to the Office of the First Retired President when the allegedly defamatory statements were made or whether he was retired; and

b. Whether the statements made were, in fact, defamatory.

16. The resolution of the second issue must involve the resolution of the first one: was the Plaintiff still in public employment or was he retired? This is so because the answer to that question will determine if, in fact, the statements made by the two Defendants were factual or not (even assuming they are, in fact, defamatory). If the statements were factual, then the substratum of the entire suit dissipates. Yet, one cannot come to a conclusion about that without coming to a finding whether the Plaintiff was still in employment or not.

17. Indeed, the Plaintiff seems to have been acutely aware of this position hence his clear prayer that this Court declares that he is legally appointed to office until 30th June, 2020. There is no denying that this is purely an employment matter. There is also no denying that the question whether the statements alleged to be defamatory have that quality or not will depend on whether the Plaintiff was actually employed or not. Indeed, the Plaintiff has filed a contract which is meant to show that he is still employed.

18. In the circumstances, it seems that the Court which is better suited to handle this suit is the ELRC since the controversy turns on the question whether the Plaintiff is retired or not.

19. Having come to this conclusion, I am of the view that it would be inappropriate to take any further step and reach any findings on the second question presented by the Defendants: whether the suit should be struck out by dint of the Verifying Affidavit allegedly violating section 4 of the Oaths and Statutory Declarations Act. The Court clothed with the jurisdiction to determine the suit will have to determine that question.

20. That lead me to the last question I must determine. What should happen to this suit? The Defendants insist that it should be struck out. I have had occasion to deal with analogous situations previously. My position has not changed. In a series of cases, I have held that the High Court has incidental jurisdiction to act and transfer such cases to an Equal Status Court rather than strike it out. In reaching the conclusion that the High Court can transfer such a suit, I have distinguished between substantive and incidental jurisdiction and concluded that even in the absence of express statutory provisions the High Court and, indeed, any of the Equal Status Courts, has inherent incidental jurisdiction to transfer matters which are improperly but in good faith filed before them but they more appropriately belong to one of the other Equal Status Courts and referred to this as the exercise of incidental concurrent jurisdiction of the Superior Courts. See, for example, Novapeku (PK) Construction and Engineering Company Ltd & 2 Others v County Government of Kiambu (Kiambu Civil Case No. 26 of 2017); and Pamoja Women Development Programme & 3 Others v Jackson Kihumbu Wang’ombe & Another (Kiambu H.C. Civil Suit No. 16 of 2016).

21. In the latter case, I dealt at length with the question whether the High Court can transfer to the appropriate Equal Status Court a suit that has been wrongly but in good faith filed before it. In reaching the conclusion that it is appropriate for the High Court to so transfer such a suit, I stated thus:

Kenyans desired specialised courts to deal with certain matters that they felt should be dealt with by these courts with special expertise and repeated experience in the questions they deal with. What Kenyans bargained for, and got in constitutionalizing the two Article 162(2) courts are the benefits associated with the creation of specialized courts in environment and law (as well as employment relations and labour): improved substantive decision making in the two areas fostered by having experts decide complex cases in the two areas and improving judicial efficiency through decreasing the judicial time it takes to process complex cases by having legal and subject-matter experts with repeated experience on the subject-matter adjudicate them. These were the advantages Kenyans bargained for in creating Article 162(2) Equal Status Courts.

Kenyans’ objectives was not to set up judicial booby traps for unsuspecting litigants who after timeously filing and pleading their cases would have to undergo a technical game of jurisdictional Russian Roulette to determine if their case will survive or be struck out. While Kenyans did not wish to give litigants a blank cheque to file suits in the wrong fora in bad faith, they intended to give parties a fair chance to have their cases determined on their merits.

This intention is defeated if, in close cases filed in a Court of cognate jurisdiction but where the parties subsequently or the Court makes a determination that the particular Court in which the matter has been filed does not have the requisite jurisdiction and that the requisite jurisdiction lies in a cognate court, the Court responds by striking out the suit and requiring the parties to file a fresh the suit.

I see no useful purpose that is served by this other than punishing a party that acted in good faith. This would be an appropriate course of action where it can be shown that the Plaintiff acted in bad faith in suing in the wrong court but not where the Plaintiff acted in good faith.

22. It is for the same reason that I would transfer this suit to the ELRC rather than strike it out. I have found no reason to conclude that the Plaintiff acted in bad faith in filing the suit before the High Court. Consequently, my decision on the matter is that while this Court does not have jurisdiction to hear the suit, the Court has incidental concurrent jurisdiction to transfer it to the appropriate Equal Status: Employment and Labour Relations Court.

23. The orders, then, shall be as follows:

i. The suit herein to wit Nakuru High CourtCivil Case No. 23 of 2018shall be transferred to the Nakuru Employment and Labour Relations Court for hearing and disposal.

ii. The Defendants are awarded the costs of the Notice of Motion dated 21/08/2018.

24. Orders accordingly.

Dated and delivered at Nakuru this 11th day of July, 2019.

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JOEL NGUGI

JUDGE