[2023] KEELRC 3061 (KLR)

Munene v Kenya Evangelical Lutheran Church; Kahuthu & 3 others (Former Respondents) (Cause 446 of 2014) [2023] KEELRC 3061 (KLR) (30 November 2023) (Ruling)

Neutral citation: [2023] KEELRC 3061 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Nairobi

Cause 446 of 2014

J Rika, J

November 30, 2023

Between

Peter Matano Munene

Claimant

and

Kenya Evangelical Lutheran Church

Respondent

and

Zachariah Kahuthu

Former Respondent

Luke Mwololo

Former Respondent

Catherine Ngina Musau

Former Respondent

Lydia Maina

Former Respondent

Ruling

1. The Former Respondents were originally sued by the Claimant, in their own names, as Trustees of the Kenya Evangelical Lutheran Church.

2. On 25th January 2021, the Former Respondents applied for orders that decree herein and taxation orders made on 30th April 2020 are stayed; ruling of the Taxing Master of 18th December 2020 is set aside; and the Bill of Costs dated 6th August 2020 is taxed afresh.

3. This Court made an interim ruling, dated 24th June 2021, calling on the Parties to file supplementary submissions, to assist the Court in understanding the following issues: -a.Whether M.M. Kimuli Advocate, having been discharged from the proceedings on 3rd July 2018, was properly on record on taxation of the Former Respondents’ Bill of Costs.b.What costs of the Claim, M.M. Kimuli Advocate sought on 3rd July 2018. c.What costs were granted.d.Whether and when the applications by the respective original Parties, for amendment and dismissal of the Claim were heard.e.Availability of the rulings and orders arising from the 2 applications.f.Whether the reference filed on 5th February 2021, on the Bill of Costs taxed on 18th December 2020, was filed within time.

4. The Former Respondents filed their supplementary submissions dated 7th July 2021. The Court has not traced supplementary submissions filed by the Claimant in its record.

5. On M.M. Kimuli Advocate’s presence at the taxation of costs, the Former Respondent’s explain that their Advocate was discharged from the proceedings. He did not cease to act for them. The Court does not agree with this explanation. Once an Advocate is discharged from the proceedings, he ceases to have the right to appear in the same proceedings, unless there is a fresh Notice of Appointment of Advocates filed. The Advocate can only appear for a Party who is actively involved in the proceedings.

6. On costs sought by M.M. Kimuli Advocate, on 3rd July 2018, the Former Respondents explain that it was their costs of the Claim, them having been removed from the proceedings, through an application for amendment filed by the Claimant, removing them, and introducing Kenya Evangelical Lutheran Church as the sole Respondent.

7. The explanation on award of costs is still not satisfactory. As pointed out in the interim ruling, M.M. Kimuli Advocate told the Court verbatim, on 3rd July 2018 that: - I have no instructions, and ask the Court to allow me out of the suit.

The new Parties should be served.

I also ask to be given costs of my Claim.

8. The Court ordered verbatim: - The Counsel for the 4 Respondents expunged M.M. Kimuli & Co Advocates are allowed to get out of the Claim with costs to the Respondents.

The Claimant to serve the new Respondent, Kenya Evangelical Lutheran Church directly.

9. The orders were made on a mention. Mr. Kimuli Advocate was never a Claimant, and did not have a Claim before the Court. The Court still has a fundamental problem understanding what costs M.M. Kimuli Advocate sought, and wat costs were granted. The final Judgment of the Court, dated 13th January 2020 gave an order for payment of ‘the costs of this suit,’ to the Claimant, payable by the successor Respondent, Kenya Evangelical Lutheran Church. There is only one suit- Cause Number 446 of 2014. Nothing was said by the Court in its final Judgment, about costs owed by the Claimant to the Former Respondents, who had been sued as Trustees of Kenya Evangelical Lutheran Church. The Judgment states, ‘costs of this suit’ to be paid by the Respondent to the Claimant.

10. There were 2 applications filed respectively, by the Claimant and the Former Respondents, before 30th November 2017. The Claimant made an application to amend the Claim, to bring in the Church and remove the Trustees. The Trustees applied to strike out the Claim against them, arguing that they were nonsuited.

11. The Court accepts the explanation by the Former Respondents, that the Claimant’s application to amend his Claim was consensually allowed, on 30th November 2017. The Court stated that costs would be in the Cause. The Kenya Evangelical Lutheran Church came into the proceedings on 30th November 2017, by dint of the amendment. The Former Respondents similarly exited the proceedings on 30th September 2017. The Application for amendment dated 6th November 2017 indicates clearly that the Church was being brought in as the Respondent, in place of the 4 individuals, the Former Respondents, named as Trustees.

12. Once the Application was allowed, it in effect did away with the Application filed by the Former Respondents, which sought to strike out the Claim, on the ground that the Former Respondents were nonsuited.

13. By the time the Claim was mentioned on 3rd July 2018, M.M. Kimuli Advocate was still on record. He can only have been on record for the Church, which was made a Party way back, on 30th November 2017, and which was the only Respondent, as of 3rd July 2018. There was no application pending to be heard on 3rd July 2018. The Former Respondents were no longer Parties. M.M. Kimuli Advocate clarified to the Court, that he did not have instructions to proceed with the Claim, on behalf of the Church, the new Respondent. The Court does not see in what context costs of the Claim could have been granted to Non-Parties. If there were costs to be granted to the Former Respondents, it would have been at the time they left the proceedings, on 30th September 2017. But the Court ordered costs in the cause on this date. The Claim was scheduled for mention, on 3rd July 2018, with a view to allocation of a hearing date, between the Claimant and the Kenya Evangelical Lutheran Church.

14. The Advocate for the Former Respondents informed the Court that he did not have instructions to continue acting for the Church, the remaining Respondent. In the understanding of the Court, M.M. Kimuli Advocate, prayed to be allowed to cease acting for the Church for want of instructions. There was nothing on 3rd July 2018 concerning the Former Respondents, and there could not have been an order made, discharging them again from the proceedings and awarding them costs of the Claim. They exited from the proceedings on 30th November 2017, without any order on costs made in their favour. They were not in the proceedings on 3rd July 2018. M.M. Kimuli Advocate stated he did not have instructions to continue acting for the Church, the new Respondent and the Claimant was advised to serve the new Respondent in person. The record indicates however, that M.M. Kimuli Advocate was on record for the Church, the remaining Respondent, as of 13th January 2020, when the Judgment in the Cause finally issued, in favour of the Claimant.

15. Costs in the final Judgment were awarded to the Claimant, prompting the Former Respondents, who had been sued as Trustees of the remaining Respondent, to file their own Bill of Costs, subject matter of the reference.

16. The date on filing of the reference is indicated by the stamp of the Court, to be 5th February 2021, which would place the reference out of time. While the Former Respondents have exhibited e-receipt issued by the Judiciary on 26thJanuary 2021, the Court does not understand why there is discrepancy between the stamp and the receipt of the Court. The date documents are received by the Court, must be consistently shown on the receipt and the receiving stamp.

17. Having made the above observations, the Court must conclude that the record is still not clear, for it to issue orders concerning the application filed by the Former Respondents, dated 25th January 2021. It is not clear upon which decree, the costs for the Former Respondents were taxed, and the Court is not able to rule on their reference. It is not sufficient for the Former Respondents to submit, that the Taxing Master was satisfied they were awarded costs. The Court where reference has been made, must be satisfied that there is a clear decree for costs on record. The orders made by the Court on 3rd July 2018, are not clear to this Court.

18. The file has been handled by different Judicial Officers and Judges, from its inception in 2014. Proceedings tend to become clouded when conducted by different Judicial Officers and Judges over time. The Judgment on record, and orders for costs, were issued by Hon. Justice Wasilwa, who is no longer stationed at Nairobi. The orders on 30th November 2017, were made by Hon. Justice Ndolo. The Former Respondents have asked the Court, that in event the record is still not clear to the Court, after they supplemented their submissions, the file should be referred to the Hon. Trial Judge.

19. The Court would agree with this proposal. It does not think an order dismissing the reference outright, would be in the interest of justice. The undersigned Judge who has been drawn into the proceedings post-Judgment, may have misread the record.

20. It is not in the administrative mandate of the undersigned Judge however, to send files to other Judges outside the station. There are other aspects of the dispute, such as the discrepancy between the dates shown on the court receipt and stamp, on filing of the reference, that need to be addressed by the right administrative authorities.

It is Ordered: -a.The Court is not able to make a final ruling on the reference filed by the 4, Former Respondents, in light of lack of clarity of the record.b.The file is referred to the Principal Judge to consider if it should be placed before the Hon. Trial Judge or other Hon. Judge familiar with the record.c.No order on the costs.

DATED, SIGNED AND RELEASED TO THE PARTIES ELECTRONICALLY, AT NAIROBI, UNDER PRACTICE DIRECTION 6[2] OF THE ELECTRONIC CASE MANAGEMENT PRACTICE DIRECTIONS, 2020, THIS 30TH DAY OF NOVEMBER 2023. JAMES RIKAJUDGE