[2022] KEHC 12922 (KLR)

Odundo v HIV & AIDS Tribunal & another (Civil Appeal E057 of 2022) [2022] KEHC 12922 (KLR) (Commercial and Tax) (14 September 2022) (Judgment)

Neutral citation: [2022] KEHC 12922 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Commercial and Tax

Civil Appeal E057 of 2022

DAS Majanja, J

September 14, 2022

Between

Victor Otieno Odundo

Appellant

and

HIV & AIDS Tribunal

1st Respondent

Chief Registrar of the Judiciary

2nd Respondent

(Being an appeal from the Judgment and Decree of Hon J W Munene, RM/Adjudicator dated April 5, 2022 at the Small Claims Court at Nairobi in SCCOMM No 798 of 2021)

Judgment

Introduction and background 1. This is appeal from the Small Claims Court where the appellant’s claim for kshs 494,000. 00 against the respondents was dismissed. The facts giving rise to the appellant’s claim are not really in dispute and are as follows. By a letter dated May 22, 2017, the appellant, a process server, was contracted by the 1st respondent as a court process server for a two-year period commencing June 1, 2017 and ending on May 31, 2019. Under the terms of the contract, the appellant was to be paid an all-inclusive sum of kshs 2,000. 00 for services within Nairobi and kshs 4,000. 00 for services outside Nairobi.

2. On December 11, 2018, the appellant demanded payment of kshs 494,000. 00 from the 1st respondent for services rendered in 2018. He followed up with another demand dated May 27, 2020 lamenting that his repeated pleas for settlement through correspondences and physical meetings had proved unsuccessful. On December 11, 2020 he wrote to the 1st respondent stating that he had accepted the sum of kshs 340,000. 00 that had so far been verified. In a letter dated May 24, 2021, the 1st respondent replied to the appellant where it stated that it forwarded the letter to the assistant director finance, office of the registrar tribunals, who requested that the 1st respondent make a schedule of the payable amounts. The 1st respondent forwarded the appellant’s letter, schedule of payable amount of kshs 340,000. 00 and the affidavits of service for further action. That the appellant’s request was further forwarded to the judiciary headquarters for processing, however, the request was declined on the ground that the appellant was engaged by the 1st respondent without the input of the director, HRM&D and the accounting officer.

3. In the Statement of Defence filed on behalf of the respondents by the Office of the Attorney General, the respondents stated that although they denied that the appellant was engaged by the tribunal, if he was indeed engaged, this was done so without the input of the director of human resource management and development and the accounting officer. Further, that the appointment of the process server did not have the approval of the Judicial Service Commission.

4. Following rejection of his claim, the appellant lodged its claim for kshs 494,000. 00. At the hearing, only the appellant testified as CW 1. The respondents did not call any witnesses. The parties also filed written submissions. In its judgment delivered on April 5, 2022, the court framed two issues for determination; Whether the first the contract entered into was a contract of service and if the court had jurisdiction to hear the matter and whether there was a valid contract between the parties.

5. On the first issue, the adjudicator found that the appellant’s contract was a contract for service and not a contract of service and therefore, the court had jurisdiction to hear the matter. It further held that the appellant was an independent contractor hired to offer his services; was free to work for any other employer and could regulate his own hours and run his own business.

6. On the second issue, the adjudicator relied on the letter dated June 13, 2014 from the Ministry of Health to the secretary/CEO of the 1st respondent informing him that the 1st respondent had been transferred to the Judiciary with effect from July 1, 2014. The court thus held that the contract offer letter dated May 22, 2017 purportedly from the 1st respondent was a nullity ab initio as at the time the 1st respondent was not under the Ministry of Health but under the Judiciary and that the Ministry of Health did not have the locus standi to hire or offer any contract for service. Further, that the said contract is not enforceable as the 1st respondent was not under the Ministry of Health and that the 1st respondent’s Chief Executive Officer could not offer contracts for service to the appellant as the 1st respondent was the under the Judiciary. For those reasons, the adjudicator dismissed the appellant’s claim with costs thus precipitating this appeal.

Analysis and Determination 7. In the Memorandum of Appeal dated May 5, 2022, the appellant complained that the judgment was inconsistent with the proceedings and that the adjudicator erred in fact and in law in finding that the appellant had not proved his case despite overwhelming evidence to the contrary. The appellant attacked the judgment on the ground that the adjudicator issued a judgment that is contrary to established case law and precedent which had been cited before her. The appellant accused the adjudicator of disregarding his evidence, submissions and authorities relied on. The appellant therefore requests the court to set aside the judgment and allow its claim.

8. The parties have filed written submissions supplemented by oral submissions in support of their respective positions. In determining this appeal, I am cognizant of the fact that under section 38(1) of the Small Claims Court Act, 2016 an appeal to this court is limited to matter of law only. Accordingly, the court is not permitted to substitute the subordinate court’s decision with its own conclusions based on its own analysis and appreciation of the facts unless the findings are so perverse that no reasonable tribunal would have arrived at them (John Munuve Mati v Returning Officer Mwingi North Constituency & 2 others[2018] eKLR).

9. From the facts I have set out above, the fact that the appellant was offered a contact for his services is not in dispute. The question is whether the 1st respondent had the locus standi to do so in light of the letter from the Ministry of Health dated June 13, 2014 that informed the CEO of the 1st respondent that the 1st respondent had been transferred to the Judiciary with effect from July 1, 2014.

10. In his evidence, the appellant stated that he was not aware that the 1st respondent was transferred to the Judiciary in 2014 and that all he did was rely on the apparent authority of the 1st respondent’s Chief Executive Officer (‘’the CEO’’). Section 107 (1) of the Evidence Act cap 80 places the legal burden of proof to a person in the following terms, that “Whoever, desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.” However, the appellant did not provide evidence as to where the CEO derived this authority even after being informed that the 1st respondent had been transferred to the Judiciary. On the other hand, the respondents averred that the CEO did not have any authority to issue a contract for services or process payment to the appellant as all such functions were taken up by the Judiciary. This position by the respondents was not countered by the appellant and I am in agreement with the respondents and the adjudicator that the CEO acted ultra vires as he did not have any authority to contract the appellant or process his payment.

11. The Court of Appeal, in Suleiman Rahemtulla Omar & another v Musa Hersi Fahiye & 5 others NRB CA Civil Appeal No. 245 of 2011 [2014] eKLR stated that once it has been established that a party had no legal capacity to enter into a contract, any contract entered into by such a party is null and void ab initio. In that case, the court of Appeal agreed with the court’s finding that even the use of official instruments or documents by an unauthorized person did not validate an otherwise invalid contract.

12. I have no doubt that the lower court arrived at the correct decision in finding that the CEO of the 1st respondent had no capacity to contract the appellant and that any contract entered between them purportedly on behalf of the 1st respondent or even the 2nd respondent was null and void ab initio.

Disposition 13. For the reasons I have set out, I dismiss the appellant’s appeal. I will not award costs as the situation the appellant found himself in was not entirely his fault.

DATED AND DELIVERED AT NAIROBI THIS 14TH DAY OF SEPTEMBER 2022. D S MAJANJAJUDGECourt assistant: Mr M Onyango.Mr Onenga instructed by Omongo Gatune and Company Advocates for the appellant.Ms Ahmed instructed by the Office of the Attorney General for the respondents.