[2015] KEELRC 929 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAKURU

CAUSE NO. 30 OF 2014

SILAS KIPRUTO 1ST CLAIMANT

JOSEPH KOECH 2ND CLAIMANT

v

THE COUNTY GOVERNMENT OF BARINGO 1ST RESPONDENT

THE CHAIRMAN BARINGO COUNTY ASSEMBLY SERVICE BOARD 2ND RESPONDENT

RULING

On 4 April 2014, Ongaya J delivered judgment in which he entered judgment for the Claimants against the Respondents in the following terms

a) A declaration that the claimants are legitimate employees of the County Government of Baringo

b) A declaration that the 2nd Respondent’s instructions baring the claimants from accessing their respective offices or performing their duties were unlawful.

c) A declaration that the purported termination of the claimants’ employment contracts and the purported disciplinary action by the 2nd respondent was in contravention of the law.

d) An order that the claimants to continue in employment in their respective capacities as the Chief Finance and Accounting Officer for 1st Claimant and the Clerk to the County Assembly for the 2nd claimant in that order.

e) An order of permanent injunction barring the respondents jointly and severally from arbitrarily terminating the employment of the claimants.

f) The 2nd respondent to pay costs of the suit.

g) The Deputy Registrar to serve this judgment within 7 days upon the Attorney General, the Transitional Authority, the Commission for the Implementation of the Constitution, and the Public Service Commission towards taking priority steps for initiating the relevant legislation under Article 235 of the Constitution.

After the judgment, the costs were taxed and certified by Hon. F Kombo at Kshs 465,142/-.

The Claimants thereafter commenced execution proceedings, and warrants of attachment and warrants of sale were given on 30 March 2015.

On 9 April 2015, Saddabri Auctioneers moved and proclaimed properties of the 1st Respondent.

The proclamation prompted the 1st Respondent to file a motion under certificate of urgency on 15 March 2015

1……. spent

2. ……spent

3. ……spent

4. THAT this Honourable Court be pleased to Review and interpret the Judgment of this Court issued on 4 April 2014 by Hon Justice Byram Ongaya.

5. ……

On 16 April 2015, I granted an order of temporary stay on condition the costs of Kshs 462,242/- be deposited into Court before 17 April 2015, and further directed that the motion be served for inter partes hearing on 29 April 2015.

The motion was served and the Claimants filed Grounds of Opposition on 23 April 2015.

1st Respondents submissions

According to the 1st Respondent, Saddabri Auctioneers proclaimed its properties on 9 April 2015, while it is the 2nd Respondent in his capacity as Chairman of the 2nd Respondent, Baringo County Assembly Service Board who was condemned to pay costs because the Court had found he had acted unilaterally without involving the 2nd Respondent.

The 1st Respondent in the same breathe urged that from the judgment it was not clear whether the Chairman of the 2nd Respondent, William Kamket was to bear the responsibility for the costs personally or as an office.

The 1st Respondent contended that because it was the unilateral action of the 2nd Respondent which gave rise to the legal action, the costs should be borne by the person who held the office of the Speaker (William Kamket), and who by virtue of that office was the Chairman of the 2nd Respondent.

And the 1st Respondent urged that the Court reviews the judgment and order William Kamket to personally bear the costs.

2nd Respondent’s contentions

Mr. Kipkoech who appeared for the 2nd Respondent stated that he would leave the issue to Court to determine.

Claimants’ response

The Claimants opposed the application. Mr. Kipnyekwei who urged their case submitted that the motion should have been brought as an objection proceeding to execution and not as a review.

Counsel further submitted that it was the 2nd Respondent who should have sought interpretation on the proper person or office to bear the costs, there being no costs order against the 1st Respondent.

He further submitted that the properties which were proclaimed belonged to the 2nd Respondent.

1st Respondent’s rejoinder

In a brief rejoinder, Mrs. Manyarkiy submitted that the Court should disregard technicalities in dealing with the motion.

Evaluation

Judgment was delivered on 4 April 2014. The formal expression of the judgment should have been embodied in a decree. I have keenly perused the file and there is no indication that a decree was applied for and issued.

The judgment delivered by Ongaya J was categorical that the 2nd Respondent was to pay the costs of the suit. The 2nd Respondent was the Chairman, Baringo County Assembly Service Board.

The 2nd Respondent was not sued in his personal capacity. It is the office and not the office holder who was condemned to pay the costs.

In his reasoning, Ongaya J noted that appropriate legislation had not been enacted and the 2nd Respondents actions were made

without guidance from any specific applicable human resource standards… the disciplinary action as purportedly initiated by the 2nd Respondent was not based on any disciplinary regulations and rules…. This case has established that in the absence of such legal provisions, individual players may take initiative that may undermine the purpose for which service boards were established…

In my view, if the Court had desired that the office holder rather than the office was to bear the costs of the suit on the basis of any conduct not made in good faith or anchored on any known contractual or statutory authority, nothing would have been easier to say.

In this regard, I do find that William Kamket, office holder as chairman was not ordered to personally bear the costs and the prayer for review fails.

But that does not technically resolve the dispute. As between the 1st and 2nd Respondent, the 1st Respondent is a creature established by the Constitution while the County Assembly Service Board is a creation of section 12 of the County Government Act.

The County Assembly Service Board is established as a body corporate and in my view it should be responsible for meeting the costs which were ordered.

Therefore in so far as the Claimants proclaimed the properties of the 1st Respondent, the said execution was against the wrong person (there was no evidence to controvert the deposition by Jekemboi Chemase that the proclaimed properties belonged to the 1st Respondent).

In this regard, the Court would stay the execution against the 1st Respondent and direct that the proclaimed properties be released unconditionally.

Further, the monies deposited into Court should be released to the depositor.

Delivered, dated and signed in Nakuru on this 19th day of June 2015.

Radido Stephen

Judge

Appearances

For Claimant Mr. Nyekwei instructed by Nyekwei & Co. Advocates

For 1st Respondent Mrs. Manyarkiy instructed by Manyarkiy & Co. Advocates

For 2nd Respondent Mr. Kipkoech instructed by Gordon Ogola, Kipkoech & Co. Advocates

Court Assistant Nixon