[2023] KEELRC 2774 (KLR)

Matiru v Judicial Service Commission (Cause E006 of 2023) [2023] KEELRC 2774 (KLR) (3 November 2023) (Ruling)

Neutral citation: [2023] KEELRC 2774 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Nyeri

Cause E006 of 2023

ON Makau, J

November 3, 2023

Between

Laban Wahome Matiru

Claimant

and

Judicial Service Commission

Respondent

Ruling

1. This ruling relates to the respondent’s Notice of Preliminary Objection dated 11th May 2023 which seeks for the striking out of the claimant’s Memorandum of claim dated 9th March 2023 for the following reason: -a.The claim is statute-barred by dint of section 90 of the Employment Act since the cause of action arose on 6th November, 2000 when the claimant was dismissed.b.The suit is res judicata in relation to the judgement rendered on 30th October 2013 and ruling rendered on 14th November 2016 by Mbaru J in Petition No.29 of 2012 Laban Wahome Matiru v The Honourable Attorney General.

Factual background 2. The Claimant’s tour of duty started on from 15th May 1972 when he joined the Public Service. He worked in various Government Ministries before joining the Judiciary in July 1991 as an Executive Officer II at Nanyuki Law Courts. He worked there until 28th June 1994 when he was charged at Nyahururu Law Court, with the offence of false assumption of authority contrary to section 104(c) and forgery contrary to section 31 of the Penal Code. After the trial, he was found guilty and sentenced to serve 3 years imprisonment or pay a fine of Kshs. 5000 for each count.

3. The Claimant appealed against the said decision and the Hon. Justice Rimita allowed the appeal on 17th December 1999, quashing the conviction, setting aside the sentence and further ordered for a refund of the fine paid by the Claimant in the lower court. Subsequently, he informed the Judicial Service Commission of the decision of the Court but by a letter dated 6th November 2000, he was informed that he had been dismissed from government service with effect from 1st July 1996, for gross misconduct.

4. He appealed against the dismissal vide a letter dated 23rdNovember 2000, stating that the dismissal on gross misconduct should be set aside since he had been vindicated by the Court. The Respondent wrote back on 12th March 2001 informing him that his appeal was considered but it was dismissed.

5. He was aggrieved and filed Originating Summons on 21st December 2001 being High Court Misc Application No. 1525 of 2001 which was later referred to this court in 2012 and given a new identity (Petition No. 29 of 2012). His complaint was that he was not given a chance to be heard and defend himself before the Judicial Service Commission as required by the Disciplinary proceedings Regulations. Therefore, he contended that his dismissal was in total contravention of the tenets of natural justice and prayed for reinstatement or in the alternative, payment of his salary and employment benefits upto March 2001. The court entered judgement in his favour on 30th October 2013. Basically, the court found that the dismissal was not justified, and that the claimant was awarded one-month salary in lieu of notice, half salary not remitted during the interdiction upto 12th March 2001 plus other benefits not remitted during the same period. The respondent was directed to compute the amount payable within 14 days.

6. Vide a letter dated 9th October 2015, the Chief Registrar of the Judiciary furnished him with assessment of costs for the period between 8th July 1996 and 12th March 2001 amounting to Kshs. 437,814. 90. He protested that the assessment excluded allowances, adjustments, and increments awarded. The court (Mbaru J) rendered a ruling on 14th November 2016 in which she agreed with the claimant and computed the amount payable as follows:a.Notice pay Kshs.17,250b.Half salary Kshs. 437,814. 90c.Due allowances Kshs. 444,920d.Interest from the date of the judgment till payment in full.

7. The said sum of Kshs. 899,984. 90 was paid in full but vide a letter dated 10th August 2017, the claimant claimed that the amount paid for house allowance was less than what was rightfully due to him. He further claimed leave allowances and other accrued dues not specified. He also requested for assistance to get pension which could not be paid when his records reflect that he was dismissed from service. The respondent replied by the letter dated 21st June 2017 contending that the award of Kshs 899,920. 90 had been fully settled, and clarified that there was no order for reinstatement. The letter also clarified that the claimant was at liberty to pursue his pension dues from the relevant authority.

8. The claimant kept on writing letters to the respondent about the matter of pension until the Director of Human Resources and Development wrote to him a letter dated 22nd June 2021captioned, “RETIREMENT UNDER FIFTY (50) YEAR RULE”. The letter purported that the claimant retired under the fifty (50) year rule with effect from 1st July 2003. The letter clarified that it intended to enable him pursue his pension on the basis of the court judgment. The letter also requested him to fill a certain form and avail certain documents to the office of the Director to process his retirement benefits.

9. The matter of retirement benefits was sorted since the Director of pensions wrote to the claimant on 25th November,2021 informing him that his gratuity had been assessed at kshs.720,188 and monthly pension of kshs.9,002. The letter also informed him that a sum of kshs 3,182,747 had been sent to his bank account being his gratuity/pension arrears.

10. The Claimant filed this suit vide the Memorandum of Claim dated 9th March 2023 seeking judgement against the Respondent for award of:a.Full salary including allowances, annual leave allowance, increments, adjustments and promotions due and accruing up to 15th May 2012, when the Claimant could have lawfully retired by attainment of 60 years of age.b.Pension entitlements accruing to the Claimant as he could have attained the retirement age.c.General damages for pain and suffering for wrongful dismissal.d.Retirement notice to issue to the Claimante.Lifting of interdiction and quashing of the termination.f.Last pay slip issues to the Claimant.g.Respondent bears the costs of this suit.h.That a, c and g above carry interests at court rates from the date of judgement till payment in full.

11. The basis of the Claimant’s claim is that as at the time of his termination, he still had 12 years before his retirement age, and is yet to receive his last pay slip and retirement notice and that his termination has caused him immeasurable pain and anguish for which he is entitled to compensation.

12. The Respondent filed the instant Preliminary Objection raising the defence that the suit is statute barred pursuant to Section 90 of the Employment Act and res judicata under section 7 of the Civil Procedure Act.

Submission 13. It was submitted for the Respondent that, this Court lacks the jurisdiction to handle this matter as the same is statute barred by dint of section 90 of the Employment Act and also res judicata under section 7 of the Civil Procedure Act.

14. It was argued that the suit was filed 23 years from 6th November 2000, when the cause of action accrued. Further, that even if the Chief Registrar’s letter of 9th October 2015, was to be considered as the time when the cause of action accrued, still the claim would be statute barred.

15. Reliance was placed on the case of Beatrice Kahai Adagala vs Postal Corporation of Kenya [2015] eKLR , G4S Security Services (K) Ltd vs Joseph Kamu & 468 others [2018] eKLR and Attorney General vs Andrew Maina & Another [2016] eKLR where the court struck out claims filed after the lapse of three years from the date of separation. Further reliance was placed on the case of Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR where the Court held that without jurisdiction a court should down its tools.

16. As regards the issue on res judicata, it was submitted that since the Employment and Labour Relations Court Act and the Employment and Labour Relations Court (Procedure) Rules are silent on the issue, then provision of the Civil Procedure Act would apply. In support of the applicability of the Civil Procedure Act, the Respondent relied on the case of Rift Valley Railway Workers Union vs Rift Valley Railways (Kenya) Limited & Another [2014] eKLR and Francis Kimutai Bii vs Kaisungu [K] Limited.

17. It was contended that the issues, parties involved in this claim are the same as the ones heard and determined by the court (Mbaru J). Consequently, it was submitted that the court lacks the jurisdiction to entertain the suit as that would be contrary to section 7 of the Civil Procedure Rules. The case of Kennedy Mokua Ongiri vs John Nyasende Mosioma & Florence Nyamoita Nyasende [2022] eKLR was cited to fortify the said submission.

18. On the other hand, it was submitted for the Claimant that the Ruling delivered by Justice Mbaru on 25th November 2014 was on the issue of computation of his dues for the period between 8th July 1996 and 12th March 2001. It was further submitted that the Respondent only paid him his dues but failed to lift the interdiction and dismissal after court found that they were wrongful. It was also submitted that the interdiction denies him his rightful salary for the period beginning 13th March 2001 to 15th May 2012 when he would have lawfully retired.

19. It was further submitted that, in its judgement of 30th October 2013, the Court stated that the Claimant was entitled to retirement benefits since he was on permanent and pensionable terms. Consequently, it submitted that the Chief Registrar should lift the interdiction to grant him access to such payment.

20. It was further submitted that the letter dated 22nd June 2021, from the Director Human Resource Management purporting that he had retired under the 50 years rule with effect from1st July 2003, was not correct. It was argued that, had the claimant wanted to retire at 50, he would have applied for it. Accordingly, it was argued that he ought to have retired at 60 years without any loss of benefits but for the said wrongful dismissal.

21. Finally, the court was urged to order the Chief Justice to lift the interdiction on behalf of the Chief Registrar and, further order for payments which are due to him for the period from 13th March 2001 to 15th May 2012 when he was to retire at the age of 60 years.

Issues for determination and analysis 22. I have carefully considered the impugned Memorandum of Claim, the Notice of Preliminary objection and the rival submissions. There is no denial that the parties here were engaged in an employment contract from 1991 to 6th November 2000 when they separated. It is also common ground that the parties were embroiled in court battle from 2001 to 2016 when Mbaru J determined the rights and liabilities between the parties. The claimant has now filed this new claim seeking the reliefs highlighted above and hence the instant objection by the respondent. The issue that fall for determination is:a.Whether the Petitioner’s claim is time barred?b.Whether the Petitioner’s claim is res judicata?

Time barred suit 23. Section 90 of the Employment Act, 2007 provides that:“Notwithstanding the provisions of section 4(1) of the Limitation of Actions Act (Cap. 22), no civil action or proceedings based or arising out of this Act or a contract of service in general shall lie or be instituted unless it is commenced within three years next after the act, neglect or default complained or in the case of continuing injury or damage within twelve months next after the cessation thereof.”

24. The question that begs for answer is when does a cause of action arise. The Court of Appeal answered this question in the case of David Ngugi Waweru v Attorney General & another [2017] eKLR where it posed thus;“21. We may ask the same question about the appellant in this case: when did he become entitled to complain or obtain a remedy in damages from his employer through the civil court? Was it at the time he received the letter of dismissal on 29th April, 2004 or at the time he received the letter converting the dismissal to termination in public interest on 13th July, 2006 or after the decision of the JR court on 17th June, 2009? The answer, we think, is the 29th April, 2004. For it bears no logic for a cause of action to accrue and then, instead of proceeding to court, the aggrieved party pursues an appellate disciplinary process that would take him outside clearly stated statutory limitation periods. The detour to the JR Court was a calculated risk since, as stated in the Boniface Inondi Otieno case (supra), time did not stop running. In any event, it seems the appellant has himself to blame since time had not run out by the time the JR Court was through with him. He had more than a year to file his claim within the statutory limit but he did not. We have considerable sympathy for him, especially considering the sentiments expressed by the JR Court, but the law must take its course.”

25. Again, in the case of Attorney General vs Andrew Maina & Another [2016] eKLR the court of Appeal held that;“Having found that the cause of action arose on 2nd February 2010 and the claim was filed on 16th June 2014, it follows by simple arithmetic that the limitation period of 3 years was surpassed by a long margin. The claim was time barred as at 1st February 2013, and I so hold”

26. From the authorities, it is now well settled that, a cause of action founded on employment contract, accrues on the date when an employee is notified that his/her employment has been terminated.

27. The purpose of the limitation of actions is not just to extinguish claims or deny justice per se, but in order to protect a defendant who may be prejudiced by the late filing of suits. This issue was considered in the case of Kenya Civil Aviation Authority v WK & 2 others [2019] eKLR where the Court cited the decision of the Court of Appeal in Mehta v Shah [1965] EA 321 at p 330 where Crabbe JA, thus:“The object of any limitation enactment is to prevent a plaintiff from prosecuting ‘stale claims on the one hand, and on the other hand protect a defendant after he had lost evidence for his defence from being disturbed after a long lapse of time.’ It is not to extinguish claims…”

28. In this case, the Claimant received communication that his employment had been terminated on 6th November 2000. Any claim founded on his employment contract which ended 23 years ago is obviously statute barred by dint of section 90 of the Employment Act or section 4 (1) of the Limitation of Actions Act which was in force then. The corollary to the foregoing is that the court is without jurisdiction to entertain the claim founded on the claimant’s employment contract which ended two decades ago.

Re judicata 29. The respondent submitted correctly that the rules of procedure for this court are silent on the doctrine of res judicata. It has also correctly submitted that whenever the court encounters any lacuna in its rules, it resorts to the Civil Procedure Rules. I will do the same here by citing Section 7 of the Civil Procedure Act which proves that:“No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court of competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.”

30. The claimant has admitted in paragraph 13 and 15 of the impugned Memorandum of Claim that he filed another suit in 2001 which became Petition No 29 of 2012 and that a judgment was rendered on 30th October 2013. I have perused the judgment by Mbaru J which at paragraph 4 states that:“The claimant further stated that his termination was contrary to the law and was done with disregard to the fact that his conviction and sentence had been set aside by the court on 17th December 1999, and the JSC acted ultra vires contrary section 13 of the Judicial Service Commission Act and that he should be restored back to his position and in the alternative that the claimant be granted his salary and benefits of employment upto march 2001. ”

31. The above paragraph confirms that the Court was trying a case of wrongful termination in which the claimant, prayed for reinstatement to his employment or in the alternative payment of salary and employment benefits. After considering the case, the court rendered the judgment on 30th October 2013 declaring the dismissal wrongful and awarded him the alternative prayer. The award was computed at Kshs 899,920. 90 and was fully settled.

32. I have already set out herein above the facts pleaded in the impugned memorandum of Claim and the reliefs sought and compared with the judgment and ruling of Mbaru J in the earlier petition. The same parties and issues are involved in the two suits. The issues raised are substantially the same including the claim for salary and other benefits of employment. The only new issue that comes is the claim for benefits for the period from March 2001 to 12th May 2012, when the claimant would have retired at the age of 60 years.

33. The claimant ought to have raised that claim in the first suit because it was connected to the issue of wrongful termination. He cannot raise it in a fresh suit after judgment. Doing so would be shifting the goal post after the score. The claimant also raises the issue of pension, but the same was given a determination in the ruling delivered on 14th November 2016 in paragraph 22 where the judge stated that:“Based on the court judgment and the finding that the termination was wrongful, the claimant is at liberty to pursue his pension dues with the relevant authority.”

34. Having considered all the matters above, I am satisfied that the issues brought before this Court were litigated upon in Petition 29 of 2012 and conclusively determined by a Court of competent jurisdiction. The determination was done by Mbaru J in her judgment and ruling delivered on 30th October 2013 and 14th November 2016. Consequently, the suit contained in the Memorandum of Claim dated 9th March 2023 is res judicata.

35. I gather support from the case of C.K Bett Traders Limited & 2others v Kenndy Mwangi & another [2021] eKLR where the court held that:“Res judicata is normally pleaded as a defence to a suit or cause that the legal rights and obligations of the parties have been decided by an earlier judgment, which may have determined the questions of law as well as of fact between the parties. In other words, res judicata will successfully be raised as a defence if the issue(s) in dispute in the previous litigation or suit were between the same parties as those in the current suit; the issues were the directly or substantially in issue in the previous suit as in the current suit and they were conclusively determined by a court of competent jurisdiction.”

36. Again, in the case of Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others [2007] eKLR the Court held that:“… This application appears to challenge the doctrine of finality. This is a doctrine which enables the courts to say litigation must end at a certain point regardless of what the parties think of the decision which has been handed down. It is a doctrine or principle based on public interest. As I stated earlier, there are instances where the public interest principles are in conflict and the courts must balance one aspect against another and decide which one supersedes the other, of course, depending on the facts and circumstances of each case. The conflict here is that the applicants feel they were not given a fair hearing by an impartial Court. The principle of finality requires that litigation should come to an end. On the basis of the existing rules of practice, the applicants were heard by this Court and judgment was pronounced.”

Conclusion 37. I have found that this suit is statute barred because the cause of action arose 23 years ago. I have further found that the suit is res judicata because it involves the same parties and substantially the same issues that were litigated upon in Petition 29 of 2012 and conclusively determined by a court of competent jurisdiction. Consequently, I allow the objection and strike out the Memorandum of Claim dated 9th March 2023 with costs.

DATED, SIGNED AND DELIVERED AT NYERI THIS 3RD DAY OF NOVEMBER, 2023. ONESMUS N MAKAUJUDGEOrderThis ruling has been delivered to the parties via Teams video conferencing with their consent, having waived compliance with Rule 28 (3) of the ELRC Procedure Rules which requires that all judgments and rulings shall be dated, signed and delivered in the open court.ONESMUS N MAKAUJUDGE