[2013] KEIC 2 (KLR)

Njoroge v Judicial Service Commission & another (Cause 2176 of 2012) [2013] KEIC 2 (KLR) (30 April 2013) (Ruling)

SAMUEL NGANGA NJOROGE V JUDICIAL SERVICE COMMISSION & ANOTHER[2013]eKLR

Neutral citation: [2013] KEIC 2 (KLR)

Republic of Kenya

In the Industrial Court at Nairobi

Cause 2176 of 2012

Nzioki wa Makau, J

April 30, 2013

Between

Samuel Nganga Njoroge

Claimant

and

Judicial Service Commission

1st Respondent

The Attorney General

2nd Respondent

Ruling

1)The Claimant filed a Claim against the Respondents seeking various reliefs. The 1st Respondent in its defence raised a Preliminary objection. The preliminary objection came up before me on 24th April 2013. Present in Court when the matter was called was the Claimant Mr. Samuel Nganga Njoroge who indicated his lawyer was on his way. Mr. Issa was present for the 1st Respondent and Mr. Okeche held brief for Ms. Nanjala for the 2nd Respondent. The Court placed aside the file till 9. 40 a.m. Mr. Okeche holding brief for Ms. Nanjala indicated that the 2nd that the Claimant's suit should have been filed within 3 years of 27th March 2008, that is to say, on or before 27th March 2011. He submitted that the Employment Act Respondent was not opposed to the Preliminary Objection by the 1st Respondent. Mr. Issa raised the objection on behalf of the 1st Respondent and his submissions were 2007 came into effect on 2nd June 2008 and the matter thus fell squarely under provisions of the new Employment Act. He thus submitted that the Claim was statute barred.

2)Mr. Issa relied on the cases of Thuranira Karauri v. Agnes Ndeche Civil Appeal No. 192 of 1996 reported as Thuranira Karauri v. Agnes Ndeche [1997] eKLR. He submitted that the Court of Appeal held that limitation goes to jurisdiction. The Court of Appeal stated that Claims which are time barred should be struck out. He also relied on the case of Timothy Mukalo v. Reuben Alubale Shiramba & 3 others [2005] eKLR where the Hon. Mr. Justice Visram (as he then was) heard the Claim and dismissed it as it was time barred. He also relied on the case of Paterson Waweru Thinwa v. Judicial Service Commission Industrial Cause No. 941 of 2012 [unreported] decided on 29th January 2013 where my sister Lady Justice Maureen Onyango made a decision to strike out a claim filed beyond the statutory limit. Mr. Issa submitted that no reasons were given as to why the suit was filed out of time. He submitted that there can be no extension of time as the suit is based on contract. He urged the Court to allow the preliminary objection and strike out the suit with costs.

3)The Court has considered the submissions of Counsel and the authorities cited in coming to this decision. It is well settled that a preliminary objection is a point of law when if taken would dispose of the suit. The objection taken by the 1st Respondent aptly fits the definition of a preliminary objection. The case of Mukisa Biscuits Manufacturing Co. Ltd v. West End Distributors Ltd [1969] E.A. 696. Law J.A. set out what a preliminary objection is:-So far as I am aware, a preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court, or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.” Sir Charles Newbold, President stated in the same judgment:-“A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.”

4)In his submissions Mr. Issa submitted that the matter of limitation goes to jurisdiction. Without jurisdiction a Court is impotent. The locus classicus on jurisdiction is the famous case of the Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1. The Hon. Judges of Appeal Nyarangi, Masime & Kwach dealt squarely with the issue of jurisdiction. The leading judgment was by the presiding judge Nyarangi JA. The decision by the judges was unanimous but each judge gave his reasons for the findings on jurisdiction but none captured it as succinctly as Judge of Appeal Nyarangi.He held at page 14 of the decision as follows:-'I think that it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the court seized of the matter is then obliged to decide the issue right away on the material before it. Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.'

5)The authority for this holding by the learned Judge is found in the writings of John Beecroft Saunders in Words and Phrases Legally defined – Volume 3: I – N which at page 113 states the following about jurisdiction:-By jurisdiction is meant the authority which a court has to decide matters that are litigated before it or to take cognisance of matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter, or commission under which the court is constituted, and may be extended or restricted by the like means. If no restriction or limit is imposed the jurisdiction is said to be unlimited. A limitation may be either as to the kind and nature of the actions and matters of which the particular court has cognisance, or as to the area over which the jurisdiction shall extend, or it may partake of both these characteristics. If the jurisdiction of an inferior court or tribunal (including an arbitrator) depends on the existence of a particular state of facts, the court or tribunal must inquire into the existence of the facts in order to decide whether it has jurisdiction; but, except where the court or tribunal has been given power to determine conclusively whether the facts exist. Where a court takes it upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgement is given”

6)The limits of this Court's authority are imposed by statute and under Section 90 of the Employment Act 2007, limitation is imposed thus:-90. Notwithstanding the provisions of section 4 (1) of the Limitation of Actions Act, 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. (underline mine)

7)The cases cited by Mr. Issa for the 1st Respondent are on point. I agree with the Court of Appeal as held in the case of Thuranira Karauri v. Agnes Ndeche [1997] eKLR where the learned Judges of Appeal Kwach, Pall and Bosire held that the issue of limitation goes to jurisdiction reiterating the position in . I agree that once this issue arises in a suit, it must be disposed of in limine. The second case of Timothy Mukalo v. Reuben Alubale Shiramba & 3 others [2005] eKLR where Justice Visram (now Judge of Appeal) held that Sections 27 and 28 of the Limitation of Actions Act cannot be relied on and that the Public Authorities Limitation Act cap 39 sets 3 years as the time limit for actions in contract. I agree with the Learned judge that the Limitation of Actions Act cannot be called in aid by the Claimant. In the unreported case of Paterson Waweru Thinwa v. Judicial Service Commission Industrial Cause No. 941 of 2012 [unreported] decided by my sister the Hon. Lady Justice Maureen Onyango, I am persuaded by her reasoning that such a dispute, as this one, which is filed out of time is amenable to striking out.

8)The Claim is struck out with costs to the 1st Respondent.It is so ordered.

DATED AND DELIVERED AT NAIROBI THIS 30TH DAY OF APRIL 2013HON. MR. JUSTICE NZIOKI WA MAKAUJUDGE