[2019] KEELRC 1126 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT

AT NAIROBI

CAUSE NO. 2289 OF 2015

(Before Hon. Lady Justice Maureen Onyango)

RIFT VALLEY RAILWAYS WORKERS UNION (K).........CLAIMANT

VERSUS

THE TRUSTEES, KENYA RAILWAYS

STAFF RETIREMENT BENEFIT SCHEME............1ST RESPONDENT

KENYA RAILWAYS CORPORATION......................2ND RESPONDENT

CORPORATE TRUSTEES..........................................3RD RESPONDENT

AND

RETIREMENT BENEFITS AUTHORITY...1ST INTERESTED PARTY

ETHICS AND

ANTI CORRUPTION COMMISSION...........2ND INTERESTED PARTY

RIFT VALLEY RAILWAYS (K) LIMITED...3RD INTERESTED PARTY

ALEXANDER FORBES...................................4TH INTERESTED PARTY

RULING

The Preliminary objections before the court for determination are filed is by the 1st and 3rd Respondents and the 4th Interested Party all dated 30th October, 2018, based on the grounds that:

1. That the Court is functus officio and has no jurisdiction to entertain this application in view of its ruling delivered on the 19th August, 2016, the judgment of the High Court in Petition 468 of 2016 and the most celebrated recent ruling of this Court delivered on 26th October, 2018, this instant application being subjudice, it is res judicata and an abuse of the Court process.

2. The issues raised in the application are res judicata in view of the Court’s ruling delivered by Abuodha J. on the 13th October 2017 in ELRC No. 783 of 2017; Rift Valley Railways Workers Union (K) Versus Kenya Railways Staff Retirement Benefits Schemes & Anor where similar issues had been raised and determined.

3. The Application as drawn is fatally defective and incompetent as it is not predicated upon any pending suit and is aimed at achieving ulterior motives to the detriment of the 1st Respondent.

4. The Claimant has no locus standi to bring this claim as it has no nexus whatsoever with the 1st Respondent and its claims are thus non justiciable.

5. The current application as filed is an unmitigated abuse of the Court process disguised as an application when in effect it is an appeal against this Courts ruling delivered on the 19th August, 2016, and 26th October, 2018 and the ruling of Abuodha J. delivered on the 13th October, 2017, in ELRC No. 783 of 2017 and the ruling of Radido J. in ELRC No. Misc Application No. 197 of 2017; Rift Valley Railways Workers Union (K) Vs Kenya Railways Staff Retirement Benefits Scheme in Petition No. 468 of 2016.

6. The instant application is frivolous, vexatious, baseless and scandalous.

The Claimant in response to the Preliminary Objection states that the Court is not functus officio as the Ruling delivered by Ndolo J on 19th August, 2016, did not dismiss the matter but only referred the matter to the Retirement Benefits Authority Tribunal for purposes of attempting to explore the initial dispute resolution mechanisms as provided for the Act before the parties could be at liberty to invite the Court to address itself to the issues in the matter.

That the Claimants were unable to proceed before the Tribunal due to lack of sitting members and in any event the Court has jurisdiction by virtue of section 12 of the Employment Act and Article 162 of the Constitution.

The Claimant submits that it has locus standi to represent its members best interest and therefore the allegation that it is non-suited is baseless. They pray of the Preliminary objection to be dismissed.

On res judicata the Claimant avers that the issues may have been litigated in this Court in the referenced matters in the respective parties Preliminary Objections which matters are now subject to appeal proceedings in the Court of Appeal and scheduled for hearing in the month of November 2018.

That the application is based on the instant claim which is yet to be disposed of and thus the application cannot be defective.

That the Court has already pronounced itself on the issue of locus standi in the instant claim and therefore the preliminary objection is unmerited and should be dismissed with costs.

The Respondents submit that the Court lacks jurisdiction as the dispute before the court relates to members of a pension scheme, trustees, sponsors and the regulator. That the Court lacks jurisdiction to deal with matters of pension.

That this Court is not the proper forum to raise the issues in the application dated 11th October 2018, of the claim as section 46 of the Retirement Benefits Act is clear as to how such issues should be dealt with. That the Claimants have come to Court directly which is in contravention of the law.

That the Claimants are forum shopping as the prayer of stay ought to be brought in the court appealed to or in the Court where the orders were made none of which is the case herein.

Determination

In the ruling respect of this applicant’s application dated 19th October 2017, I found that the applicant had filed several suits which are broadly in respect of the same subject matter being –

1. Misc. Application No. 197 of 2017

2. Nairobi petition No. 468 of 2016.

3. Misc. Application No. 84 of 2016,

4. Misc. Application No. 76 of 2015,

5. Misc. Application No. 59 of 2016,

6. Misc. Application No. 10 of 2018

7. and this claim No. 2289 of 2015

In the said application one of the prayers was for –

“That in the meantime, a permanent order be issued restraining the respondents herein and or their agents from selling any of the properties listed in the Legal Notice Number 169 of 2006 until the issues brought out in the matter are heard and determined.”

Prayer 2 in the instant application seeks orders that –

“That there be a tentative stay on the execution by the Auctioneer of the claimants’ assets as heave bee proclaimed by the respondent through his Auctioneer, pending the determination of this application.”

In the ruling, the court stated that the application was res judicata and that the applicant herein has suffocated the respondents with suits on similar grounds.

The same fate must befall the present application.The application herein is clearly res judicata and I accordingly strike it out.

DATED, SIGNED AND DELIVERED AT NAIROBI ON THIS 12TH DAY OF JULY 2019

MAUREEN ONYANGO

JUDGE