[2023] KEHC 19527 (KLR)

Republic v County Government of Embu & 3 others; Munyi (Exparte Applicant) (Judicial Review 5 of 2021) [2023] KEHC 19527 (KLR) (3 July 2023) (Ruling)

Neutral citation: [2023] KEHC 19527 (KLR)

Republic of Kenya

In the High Court at Embu

Judicial Review 5 of 2021

LM Njuguna, J

July 3, 2023

IN THE MATTER OF ORDER 53 RULE 1 OF THE CIVIL PROCEDURE RULES, 2010 AND IN THE MATTER OF EMPLOYMENT & LABOUR RELATIONS COURT CASE NO. 2A OF 2018 AT EMBU MAGISTRATES COURT AND IN THE MATTER OF AN APPLICATION FOR LEAVE TO APPLY FOR JUDICIAL REVIEW ORDERS OF MANDAMUS

Between

Republic

Applicant

and

The County Government of Embu

1st Respondent

The Secretary, Embu County Government, Public Service Board

2nd Respondent

The Secretary, Embu County Government

3rd Respondent

The County Executive Officer, County Government of Embu

4th Respondent

and

Martin Muriithi Munyi

Exparte Applicant

Ruling

1. The ex parte applicant herein, instituted these judicial review proceedings by way of a Notice of Motion dated July 9, 2021 seeking judicial review orders of mandamus compelling the Respondents to implement the judgment awarded in Embu Chief Magistrate’s Court Employment Case No 2A of 2018 by payment of KES 1,357,200/- being the decretal amount awarded and indicated in the certificate of order against the government dated 09. 04. 2021. The applicant also sought for the costs of the application to be borne by the respondents.

2. The application is founded on the grounds set out in the statutory statement of facts by his advocates and the affidavit verifying the facts sworn by the ex parte applicant.

3. In a nutshell, the applicant’s case is that he sued Embu County Government in Embu Chief Magistrate’s Court Employment Case No 2A of 2018 which matter was concluded in his favour and that he is currently owed a total of KES 1,357,200/- being the award in the judgment, interest and costs as per the certificate of order against the government as at September 18, 2020. That the respondents have despite having participated in the proceedings in the lower court, knowledge of the court award, having been served with the decree and all other requisite documents, refused to make good the ex parte applicant’s claim by implementing the judgment. This court was therefore urged to issue an order of mandamus directed to the respondents ordering the respondents to pay the ex parte applicant within fourteen days the sum of KES 1,357,200/- due and owing as at 18. 09. 2020 on account of the decree entered by the Magistrates’ courts.

4. Additionally that, the respondents have a legal duty to comply with the said judgment by settling the applicant’s claim which duty they have abdicated and threaten to continue abdicating unless compelled by this court to comply and that the continued delay in implementing the said award is unjust, unfair, an abuse of the due process of the law and it violates the legitimate expectation of the applicant.

5. The respondents opposed the application vide grounds of opposition dated November 29, 2021 and wherein it was stated that the application herein is devoid of merit and further that it does not meet the threshold of the grant of Judicial Review orders for the reasons that the same is frivolous, misconceived and a clear abuse of the court process. It was therefore prayed that the notice of motion application herein be dismissed with costs.

6. When the application came up for hearing, the parties took directions to dispose the same by way of written submissions and which directions were complied with, by all the parties.

7. The applicant submitted that the application before this court is that of issuance of an order of mandamus directed to the respondents ordering them to pay the ex parte applicant within fourteen days the sum of KES 1,357,200/- due and owing as at September 18, 2020 on account of a decree entered by the Magistrates’ courts. The applicant therefore came up with two main issues for determination to wit: whether an order of mandamus should issue as prayed and who should bear the costs.

8. On the issue whether this court should issue the order as prayed, it was submitted that before an order of mandamus could issue, an applicant must abide by the procedure in section 21 of Government Proceedings Act. That in the case herein, the applicant moved this court for issuance of the orders in reference to the judgment entered into, after a consent between the ex parte applicant and the respondents; that the respondents are well aware of the facts of the case herein as the application and hearing notices were well received as evidenced on the record. Reliance was placed on the cases of Kenya National Examination Council v Republicex parteGeoffrey Gathenji Njoroge & 9others [1997] eKLR and Republic v AG & anotherex parteStephen Wanyee Roki [2016] eKLR and further, Sections 44 and 45 of theCounty Governments Act, 2012. It was the applicant’s case that the respondents being officers of Embu County Government, they were properly sued as they deal with the satisfaction of court decrees on behalf of the county government.

9. On who should bear the costs, it was the applicant’s submissions that the same follows the event. Reliance was placed on the case of Joseph Oduor AnodevKenya Red Cross Society [2012] eKLR. That costs are awarded at the unfettered discretion of the court, subject to such conditions and limitations as may be prescribed and to the provisions of any law for the time being in force, but they must follow the event unless the court has good reason to order otherwise. This court was therefore urged to allow the prayers herein.

10. The respondents in their submissions, disputed the jurisdiction of the court herein to handle the matter before it. This is so since the matter before this court was one of employment and therefore, it was argued that this court lacks jurisdiction to deal with the same. That the application herein offends the provisions of sections 59 of the County Governments Act, 2012 as the 2nd respondent did not have legal powers to effect payments arising from a court’s decree. Reliance was placed on the case of RepublicvsCounty Secretary, County Government of Mombasa & 2othersex parteSamuel Mutemi t/a Tudor Paradise cited with approval in the case of Council of Governors & others v the Senate Petition No 413 of 2014 [2015] eKLR. In the end, this court was urged to dismiss the application herein with costs as the same was premature and that it is targeting wrong officers.

11. I have considered the application herein and the annexures thereto. It is clear that the applicant seeks the orders of mandamus against the respondents herein. It is trite that an order of mandamus is issued so as to compel the performance of a public duty which is imposed on a person or body of persons by a statute and where that person or body of persons has failed to perform the duty to the detriment of a party who has a legal right to expect the duty to be performed. [See Republic v Kenya National Examinations Council exparte Gathenji and 9 Others, [1997] eKLR].

12. Of importance to note is the fact that the respondent argued that the applicant herein seeks to enforce a judgment arising from employment and labour relations matter which offends Article 162 (2) of theConstitution. That this court lacks jurisdiction to determine the application herein since the same ought to have been filed in an Employment and Labour Relations Court.

13. Interestingly, the ex parte applicant's advocate did not address this highly pertinent issue in his submissions and/or sought for leave to file further submissions in regard to the same.

14. Jurisdiction is the basis on which any Tribunal or Court tries a case; it is the lifeline of all trials. In other words, a trial without jurisdiction is a nullity. The importance of jurisdiction is the reason why it can be raised at any stage of a case, be it at the trial, on appeal to Court of Appeal or to the Court; afortiori the Court can suo moto raise it.

15. By jurisdiction is meant the authority which a court has to decide matters that are litigated before it or to take cognizance 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 like means. If no restriction or limit is imposed, the jurisdiction is said to be unlimited.

16. A limitation may be either as to the kind and nature of the actions and matters of which the particular Court has cognizance, 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 fact exist.

17. 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 judgment is given. A Court’s jurisdiction flows from either theConstitution, legislation or both or by principles laid out in judicial precedent. [See Supreme Court Inthe matter of the Interim Independent Electoral Commission, Constitutional Application No 2 of 2011 (unreported)].

18. In general, a Court is bound to entertain proceedings that fall within its jurisdiction. Put differently, a court has no inherent jurisdiction to decline to entertain a matter within its jurisdiction. Jurisdiction is determined on the basis of pleadings and not the substantive merits of the case. The South African Constitutional Court [See In the matter between Vuyile Jackson GcabavsMinister for Safety and Security First &others Case CCT 64/08 [2009] ZACC 26] had this to say:-“Jurisdiction is determined on the basis of the pleadings… and not the substantive merits of the case… In the event of the Court’s jurisdiction being challenged at the outset (in limine), the applicant’s pleadings are the determining factor. They contain the legal basis of the claim under which the applicant has chosen to invoke the court’s competence. While the pleadings – including in motion proceedings, not only the formal terminology of the notice of motion, but also the contents of the supporting affidavits – must be interpreted to establish what the legal basis of the applicant’s claim is, it is not for the court to say that the facts asserted by the applicant would also sustain another claim, cognizable only in another court. If however the pleadings, properly interpreted, establish that the applicant is asserting a claim …, one that is to be determined exclusively by……{another court}, the High Court would lack jurisdiction…"

19. It is not in dispute that judgment was entered in favour of the applicant in Embu CM’s Employment Case No 2A of 2018 which matter was concluded in his favour and that he is currently owed a total of KES 1,357,200/- and a decree issued which the respondents have failed to satisfy. The applicant thus has urged this court to issue the orders of mandamus to enable the applicant realize his dues from the respondents.

20. The Courts are bound by the mandate of the Legislature and once it has expressed its intention in words which have a clear significance and meaning, the Court is precluded from speculating. If the provision is unambiguous and if from that provision the legislative intent is clear, the other rules of construction of statutes need not be called into aid. The Courts would not be justified in so straining the language of the statutory provision as to ascribe the meaning which cannot be warranted by the words employed by the Legislature. [See RepublicvsNational Employment Authority & 3 Others Ex –parte Middle East Consultancy Services Limited [2018] eKLR].

21. My reading of theConstitution under article 162. (1) The superior courts are the Supreme Court, the Court of Appeal, the High Court and the courts referred to in clause (2).(2)Parliament shall establish courts with the status of the High Court to hear and determine disputes relating to—(a)employment and labour relations; and(b)the environment and the use and occupation of, and title to, land.(3)Parliament shall determine the jurisdiction and functions of the courts contemplated in clause (2).

22. Article 162 cited above leaves me with no doubt that that Parliament was very clear that disputes arising from the exercise of the matters of employment are to be appealed and/or filed at the Employment Court. Consequently, I find and hold that this Court has no jurisdiction to entertain this matter by dint of the above article.

23. As a consequence of the above, it is this court’ s finding that:i.This court is bereft of jurisdiction to entertain the application herein.ii.The application is therefore struck out with costs to the respondent.

24. It is so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 3RD DAY OF JULY, 2023. L. NJUGUNAJUDGE………………………………………………Applicant……………………………………………Respondents…………………………………………………ex parte Applicant