[2017] KEELC 3324 (KLR)

REPUBLIC OF KENYA

IN THE E.L.C COURT OF KENYA AT EMBU

E.L.C.A 04 OF 2016

MURIUKI SAMSON MURITHI alias NICODEMUS MURIUKI……..……..APPELLANT

VERSUS

KIRINYAGA DAIRY FARMERS CO-OP SOCIETY LTD…………….……RESPONDENT

AND

KIRINYAGA DISTRICT FARMERS

SACCO SOCIETY LTD………………………..…..INTERESTED PARTY/RESPONDENT

RULING

1. This appeal arose from the judgement and decree of the Learned Senior Resident Magistrate in Baricho CMCC No. 184 of 2010 dated 11th May 2011. The Appellant was aggrieved by the said decree in consequence of which he filed the present appeal.

2. For some reason, the appeal has taken a relatively long period to be heard. During the pendency of the said appeal, the Appellant filed a Notice of Motion dated 14th October 2015 under section 3A of the Civil Procedure Act (Cap 21) seeking an order for referral of the case to the “dispute committee” of the County Government of Kirinyaga.

3. The said application is based upon the grounds shown on the face of the motion which include the fact that the parties have never tried to resolve the dispute through the dispute resolution mechanism of the County Government of Kirinyaga; that the disputed property was allocated by the said government; and that it is best suited to arbitrate on the dispute; and that none of the parties was likely to suffer any prejudice.

4. The said application was supported by the supporting affidavit of the Appellant sworn on 14th October 2015 which basically reiterated the grounds of the application as stated in the Notice of Motion.

5. The said application was opposed by the Respondent and the Interested Party. A replying affidavit by Amos Kimotho Njeru, the Chief Executive Officer of the interested party was filed on 10th March 2016 in opposition thereto.

6. The interested party averred in the replying affidavit that it is only the court which has jurisdiction to hear and determine the appeal. It also opposed the referral to ADR on the basis that the County Government of Kirinyaga would not be an impartial arbiter in the dispute because its predecessor had exhibited bias against it and the Respondent in previous proceedings where it had sent a surveyor to testify in support of the Appellant.

7. The application was also opposed on the basis that the said “dispute committee” of the County Government of Kirinyaga is a creature unknown to the law which was unilaterally sourced by the Appellant. The interested party, therefore, considered that it would suffer prejudice and loss if the said application is allowed.

8. The said application was listed for hearing on 6th March 2017 when it was canvassed before me by counsels for the respective parties. Ms Anne Thungu for the Appellant argued her application while Mr Muchiri for the Respondent and the Interested Party opposed the same.

9. While Ms Thungu followed the script of her application in her submissions, Mr Muchiri argued some additional grounds in opposition thereto which were not apparent from the replying affidavit.

10. Mr Muchiri submitted, firstly, that the said application was improperly before the court since it was purportedly brought under section 3A of the Civil Procedure Act (hereinafter “the Act”) instead of Order 46 of the Civil Procedure Rules, 2010 (hereinafter “the Rules”). Secondly, he submitted that even Order 46 applies to hearing and determination of suits in the first instance and not to the appellate process. In his view, Order 42 of the Rules which deals with appeals makes no mention of the application of ADR. Finally, he submitted that even where ADR is applicable under Order 46 of the Rules the process must be voluntary and it cannot be imposed upon the parties.

11. In her reply to Mr Muchiri’s submissions on points of law, Ms Thungu for the Appellant submitted that the court has jurisdiction under section 3A of the Act to consider and determine the said application without undue regard to technicalities of procedure.

12. The main issues for determination in this application appear to me to be the following:

1) Whether the Notice of Motion dated 14th October 2015 is properly before the court.

2) Whether this court has exclusive jurisdiction to handle the matter and whether a referral to ADR would amount an ouster or abdication of jurisdiction.

3) Whether on the merits of the case the Appellant has made out a case for referral of the matter to ADR.

13. On the first issue, the question for determination is whether the Notice of Motion dated 14th October 2015 is incompetent by reason of the Appellant having moved the court under section 3A of the Act instead of Order 46 of the Rules. Section 3A saves the inherent power of the court in the following terms:

“3A, Nothing in this act shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent the abuse of the process of court.”

14. It cannot be denied that section 3A is merely a saving provision and does not take away or add any jurisdiction to a court which is competent to handle a particular matter or issue. It is a provision which is commonly resorted to when an applicant is unable to find a specific provision in the Rules which address his particular situation. Under Order 51 rule 10 of the Rules, an applicant is required to state “every order, rule or other statutory provision” pursuant to which an application is made but the rule is qualified in the following manner:

“...but no objection shall be made and no application shall be refused merely by reason of a failure to comply with this rule.”

15. Moreover, Rule 10 subrule 2 of the said Order provides the following caution:

“No application shall be defeated on a technicality or for want of form that does not affect the substance of the application.”

16. The provisions of section 19 (1) of the Environment and Land Act and Article 159 (2) (1) of the Constitution of Kenya 2010 also enjoin this court to dispense justice without undue regard to technicalities of procedure. In my opinion, neither the Respondent nor the Interested Party have suffered any prejudice by the manner in which the court was moved. I do find, and hold, that the Appellant’s Notice of Motion is properly before the court.

17. The next issue for consideration is whether this court has exclusive jurisdiction to handle the appeal and if a referral to ADR would amount to an ouster, or abdication, of the court’s jurisdiction. It should be borne in mind that the application of ADR in resolution of disputes in the exercise of judicial authority is recognized and encouraged by the Constitution of Kenya, 2010. Article 159 (2) requires the judiciary and tribunals to be guided by certain principles among them the promotion of alternative forms of dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms.

18. The courts established under the Constitution of Kenya are therefore required to encourage the parties who appear before them to explore the various forms of ADR in the resolution of their disputes in accordance with the normal principles of ADR. The object of promoting ADR is obvious especially in the Kenyan context where we do not have an adequate number of judicial officers to handle such disputes thereby resulting in undue delays and backlog in the adjudication process. The idea is to promote the overriding objective of the court in administering justice in a timely, cost effective and proportionate manner.

19. In my view, there is no contradiction between the conferment of judicial power to adjudicate over disputes before a judicial authority and the requirement for the same judicial authority to recognize and promote ADR. Promoting resolution of disputes through ADR does not amount to an ouster or abdication of the jurisdiction of the court. In my opinion, therefore, the exercise of judicial authority and the promotion of ADR are quite compatible, and not strange bed-fellows.

20. The other related issue is whether or not the provisions of Order 46 of the Civil Procedure Rules are applicable to the initial determination of suits to the exclusion of appeals. It was the submission of Mr Muchiri that there are no provisions on ADR in Order 42 of the Rules which deals with appeals. It was his view and submission that ADR is therefore not applicable to the appellate process.

21. I am unable to agree with the said submission in view of the clear provisions of Article 159 (2) of the Constitution of Kenya. The said Article obligates all Courts and tribunals “established under the Constitution” to promote the use of ADR in the resolution of disputes. Such courts include the Court of Appeal and the Supreme Court which have appellate jurisdiction. The other superior courts being the High Court, the ELC and the ELRC also enjoy appellate jurisdiction in various matters. It is my considered view that such a restrictive interpretation as contended by Mr Muchiri would defeat the object of Article 159 (2) of the Constitution. I hold that the ADR process applies to the entire dispute resolution including the appellate processes.

22. The third issue is whether on the merits of the case the Appellant has made out a case for referral of the matter to the disputes committee of the County Government of Kirinyaga for resolution by way of ADR. It should be remembered that the Respondent and the Interested Party have vigorously opposed the application for such referral.

23. The relevant provisions governing the application of ADR other than Article 159 of the Constitution of Kenya are section 59C of the Civil Procedure Act (Cap 21) and Order 46 of the Civil Procedure Rules. Section 59 provides, inter alia, that:

1) A suit may be referred to any other method of alternative dispute resolution where the parties agree or where the court considers the case suitable for such referral.

2) Any other method of alternative dispute resolution shall be governed by such procedure as the parties themselves may agree to or as the court may, in its discretion order.

24. On the other hand, the material provisions of Order 46 rule 20 Rules provides, inter alia, that:

1) “Nothing under this Order may be construed as precluding the court from adopting and implementing, of its own motion or at the request of the parties, any other appropriate means of dispute resolution (including mediation) for the attainment of the overriding objective envisaged under sections 1A and 1B of the Act.

2) The court may adopt an alternative dispute resolution and shall make such orders or issue such directions as may be necessary to facilitate such means of dispute resolution.”

25. It is clear from the above cited provisions of the law that ADR may be undertaken either by consent of the parties concerned or upon the court’s own initiative where the court is satisfied that a referral would be suitable. The first alternative is obviously not available here because all the concerned parties are not agreed on referral of this matter to ADR, or at least to the said disputes resolution committee of the County Government of Kirinyaga. In my view, an ADR process should not be imposed upon an unwilling party unless there are compelling reasons for doing so. One of the important principles of a credible ADR process is that it should be voluntary. Parties cannot meaningfully engage in an ADR process under compulsion.

26. That leaves the only alternative as the second one where the court on its motion may direct the parties to engage in ADR where it considers a particular case to be suitable for such a process. So is this one such suitable case where the court may refer the case to ADR? I am afraid not, for two reasons.

27. First, the Respondent and the Interested Party do not have any faith in the proposed arbiter. The Interested Party has sworn an affidavit asserting that the County Government of Kirinyaga would not be an impartial arbiter because its predecessor has previously supported the Appellant in previous proceedings in Baricho SRMCC No. 14 of 2005 which related to the same subject matter. It was stated that the defunct County Council of Kirinyaga had sent one of its surveyors to testify in support of the Appellant. Whether this allegation be true or not, it is indicative that the Respondents have no faith in the proposed arbiter and are therefore unlikely to be committed to an ADR process driven by such arbiter.

28. Secondly, the pending appeal is of a highly technical nature, in legal terms, as evident from the Memorandum of Appeal. There are various legal issues which are highly contested in the appeal including the applicability of the doctrine of res judicata to the proceedings before the Magistrate’s Court. In my opinion, therefore, this case is not suitable for referral to ADR. The interests of justice and the overriding objective of the court may be served better by the parties fixing the appeal for directions and prosecuting the same to its logical conclusion.

29. In the case of Kenya Revenue Authority Vs Jimmy Mutuku Kiamba, Nairobi High Court Misc Civil Application No. 285 of 2015, the Hon Justice Fred Ochieng made the following remarks in matter where one of the parties desired to engage in ADR in a case where he had filed a tax appeal against the tax assessment by KRA;

“Although there is no legal bar to parties resolving disputes which are before an appellate court or tribunal, it would be wrong for a court to direct the parties to resolve a pending appeal through arbitration.”

30. The upshot of the foregoing is that the Appellant’s Notice of Motion dated 14th October 2015 is hereby disallowed with costs.

31. I would advise the parties to take appropriate directions on the appeal and prepare for the hearing and disposal thereof.

Orders accordingly.

RULING DATED, SIGNEDand DELIVERED in open court at EMBU this 16thday of MARCH 2017

In the presence of Mr Kamunde holding brief for Ms Thungu for the Appellant and Mr Okwaro holding for Mr Muchiri for the respondent and Interested Party.

Court clerk Njue

Y.M. ANGIMA

JUDGE

16. 03. 17