[2022] KEHC 13935 (KLR)

Rift Valley Railways Workers Union (K) v Mahinga, MD Kenya Railways & 2 others; Retirement Benefits Authority & 2 others (Interested Parties) (Civil Case E113 of 2022) [2022] KEHC 13935 (KLR) (Civ) (19 October 2022) (Ruling)

Neutral citation: [2022] KEHC 13935 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Case E113 of 2022

JK Sergon, J

October 19, 2022

Between

Rift Valley Railways Workers Union (K)

Plaintiff

and

J. Mahinga MD Kenya Railways

1st Respondent

Kenya Railways Corporation

2nd Respondent

Kenya Railways Staff Retirement Benefits Scheme

3rd Respondent

and

Retirement Benefits Authority

Interested Party

Masore Nyang’au & CO. ADV

Interested Party

Albert Mumma & CO. ADV

Interested Party

Ruling

1. Rift Valley Railways Workers Union, the applicant herein, took out the motion dated May 12, 2021 whereof it sought for the following orders:-i.That the matter be certified urgent and that same be heard urgently and ex-parte in the first instance.ii.That the application be served upon the parties with an earlier inter-partes hearing date being accorded the parties.iii.That the 1st respondent herein be and is hereby summoned to appear before the court to show cause why he cannot be committed to civil jail and or be fined such sums as the court shall determine for the said 1st respondent’s disrespect and contemptuous actions to the said Hon court orders and directives issued on the June 20, 2019. iv.That costs of the application be provided for.

2. The aforesaid motion is supported by the affidavit sworn by Munyai Opondo Isaac. The applicant went ahead and also filed the motion dated July 8, 2022 during whereof it sought for the following orders:i.That the application be certified urgent and that same be heard urgently and ex-parte in the first instance.ii.That in the interim, and to allow for service of the application upon parties, the herein impugned annual general meeting allegedly convened on the July 19, 2022 be and is hereby stayed until the issues as are brought out in this application are heard and determined.iii.That the application dated May 9, 2022 filed by the applicant on the May 10, 2022 be heard alongside the instant application dated the July 5, 2022. iv.That costs of the application be provided for.

3. The applicant filed the affidavit sworn by Munayi Opondo Isaac, its secretary general, in support of the aforesaid motion. The applicant thereafter further filed an amended motion dated July 27, 2021 whereof it sought for the following ordersi.That the application be certified urgent and that same be heard urgently and ex-parte in the first instance.ii.That in the interim, and to allow for service of the application upon parties, the herein impugned members special general meeting allegedly convened on the September 20, 2022, be and is hereby stayed until the issues as are brought out in this application are heard and determined.iii.That the application dated the July 8, 2022 be and is hereby withdrawn with no orders as to costs.iv.That the 4th, 5th 6th and 7th intended respondents be admitted in the matter as the 4th 5th 6th and 7th respondents respectively.v.That the application dated May 9, 2022 filed by the applicant on the May 10, 2022 be heard alongside the instant application dated the July 22, 2022. vi.That the fourth respondent be and is hereby directed in consultation with the applicant herein to invoke the provisions of the section 45 of the RBA Act and have the operations of the 3rd respondent back on track.vii.That costs of the application be provided for.

4. The applicant filed in support of the amended motion, the affidavit sworn by Munayi Opondo Isaac.

5. Mr J Mainga, the Managing Director, Kenya Railways, Kenya Railways Corporation and Kenya Railways Staff Retirement Benefits Scheme, being the 1st, 2nd and 3rd respectively, filed a notice of preliminary objection September 2, 2022 to oppose the three applications. In the aforesaid notice of preliminary objection, the trio beseeched this court to strike out and dismiss the aforesaid applications on the basis of the grounds stated on the face of the notice.

6. Retirement Benefits Authority which is named as the 1st interested party took out the motion dated October 11, 2022 in which it sought for inter alia its name to be struck out as a party to the proceedings. The 1st interested party filed in support of its motion the affidavit sworn by Kimathi Gakunu, its legal officer.

7. This court gave directions to have the notice of preliminary objection to be determined first. Parties and their advocates were invited to make oral submissions. Mr Adwara, learned advocate for the 1st, 2nd and 3rd respondents urged this court to uphold the respondents’ notice of preliminary objection by striking out the applications filed by the applicant on the basis that there is no substantive suit as envisaged under section 19 of the Civil Procedure Act.

8. It is pointed out that the instant applications lack a foundation to stand on. The respondents cited the case of Muchanga Investments Ltd v Safaris unlimited (Africa) Ltd & 2 others[2009] eKLR.

9. Mr Mwiti, learned advocate for the 1st interested party adopted the arguments put forward by the respondents in support of the notice of preliminary objection. The learned advocate urged this court to dismiss the applicant’s applications on the basis that there is no cause of action under order 2 rule 15 of the Civil Procedure Rules.

10. In response, the applicant through Mr Munayi Opondo Isaac, its Secretary General, opposed the preliminary objection arguing that the preliminary objection has been overtaken by events therefore it serves no useful purpose.

11. Having considered the material placed before this court plus the rival oral submissions, it is not disputed that the applicant’s applications are not hinged on any substantive suit as envisaged under section 19 of the Civil Procedure Act as read together with orders 3 and 4 of the Civil Procedure Rules.

12. The other issue which is not controverted is that the orders sought to be enforced by the applicant through the applications appear to no longer exist since the same were discharged by the court orders of June 20, 2019 issued vide CMCC No 4416 of 2019 in which the aforesaid suit was struck out by the court for want of jurisdiction on September 17, 2019.

13. It is also apparent from the material placed before this court that the alleged orders relating to CMCC No 4416 of 2019 including the orders prohibiting the respondents from holding a meeting were discharged following the striking out of the suit. The vexing question is whether the applications filed by the applicant amount to an abuse of the court process.

14. It is not in dispute that the applicant in the same miscellaneous file has filed three applications in succession. The applicant claimed that the circumstances kept changing forcing the applicant to file new applications or the amended one. I find this habit of filing a plethora applications on the basis of a miscellaneous application without a substantive suit amount to be an abuse of the court process and this renders the whole proceedings to be incompetent and fatally defective.

15. In the end, the respondents’ preliminary objection is upheld. Consequently, the applicant’s applications dated May 12, 2021, July 8, 2022 and July 27, 2022 plus the entire proceedings are hereby ordered struck out. In the circumstances of this case, a fair order on costs is to order which I hereby do that each party meets its own costs.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 19TH DAY OF OCTOBER, 2022. .......................................JK SERGONJUDGEIn the presence of:……………………………. for the plaintiff/applicant..................................... for the 1st respondent..................................... for the 2nd respondent..................................... for the 3rd respondent...................................... for the 1st interested party.……………………………... for the 2nd interested party...................................... for the 3rd interested party.