[2019] KEHC 2740 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAKURU

JUDICIAL REVIEW APPLICATION NO. 18OF 2012

AND

IN THE MATTER OF JUDGMENT IN

NAKURU HCC NO. 65 0F 2006

SIMON KAMAU & 19 OTHERS......................PLAINTIFFS/RESPONDENTS

-VERSUS-

TEACHERS SERVICE COMMISSION (TSC)....DEFENDANT/APPLICANT

RULING ON THE TEACHERS SERVICE COMMISSION(TSC’S) APPLICATION

DATED 24TH SEPTEMBER 2018

Background to the application

1. The Applicant is the Teachers Service Commission (TSC) and brings the application under the Provisions of Section 34(1) of the Civil Procedure Act.It reads

34(1)All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the court executing the decree, and not by a separate suit.

2. This Judicial Review application was taken out by the Respondents (Simon P. Kamau & 19 Others). This is the proceeding in which they seek enforcement by way of payment of the judgment and decree, in the mother suit Nakuru HCCC No. 65 of 2006.

Simon P. Kamau & 19 Others –vs- Teachers Service Commission (TSC) by a plaint dated 21st March 2006.

It was a representative class action on behalf of all the then retired teachers. Leave to bring the class action was granted in Nakuru HCCC Misc. Appl. No 497 of 2005.

The retired teachers, subject of the suit, were those in the TSC service on or before 1st July 1997.

3. The issue then was between the plaintiffs (Retired Teachers) and their employer, TSC, on the implementation of a negotiated salary increments published in Gazette Notice No. 534 of 1997, that was to apply to all, including those on leave pending retirement but were in service of TSC as at 1st July 1997.

The Retired Techers claim was that TSC was in breach of the said agreement and the gazette notice by its failure to add to their retirement benefits the increments, and particularised the losses they had suffered by each of them.

4. THE RETIRED TEACHERS PRAYERS

They therefore sought, sought (See Par. 12 of the plaint)

(a) Declaration that the outcome of this representative suit will apply to all retired teachers.

(b) A declaration that the plaintiffs and all other retired teachers are entitled to their retirement benefits inclusive of all benefits provided for in the 1997 agreement between the Government of Kenya and Teachers Service Commission.

(c) An order that the defendant pay the plaintiffs all unpaid benefits todate.

(d) Costs of this suit.

(f) Any other relief that this Honourable Court may deem fit and expedient.

5. JUDGMENT AND RELIEFS GRANTED

Judgment on the suit was delivered on the 23rd October 2012 by the Hon. Justice D.K. Maraga (as he then was) and determined that

“In the result, I grant the Declarations that the plaintiffs and all the other retired teachers covered by the agreement dated 11th October 1997 between the defendant and the teachers union KNUT as read with the TSC Circular No.13/97, are entitled to their retirement benefits being based on the entire salary increment contained in that agreement and circular. On the basis of that increment I order the defendant to pay or to liaise with the Pensions Department to pay to the plaintiffs and those they represent the unpaid gratuity and pension dues to date and base all their future pension payments on the entire salary increment of 1997 as per the particulars stated in paragraph 8 of the plaint. The plaintiffs shall have costs of the suit.”(emphasis added).

6. TSC was not satisfied with the judgment. It moved to the Court of Appeal vide Civil Appeal No. 300 of 2009 on numerous grounds.

7. COURT OF APPEAL JUDGMENT

Upon hearing the Appeal the Learned Judges delivered their judgment on the 12th November 2010 and rendered that

“We therefore hold that the last salary should be computed in a way that incorporates all the terms of the agreement between the parties. In the result we uphold the superior court’s judgment.

The appeal is accordingly dismissed with costs to the respondents.

8. At Paragraph 2 on Page 8 of its judgment, the Court of Appeal Judges rendered

“As regards what is to be regarded as the last salary, we repeat that it is up to the commission to work it out and thereafter ask the plaintiffs and other affected retirees to present the proper working and documentation to the Director of Pensions.

9. TEACHERS SERVICE COMMISSION DUTY

At this stage, it was upon the TSC to work out the last salary, and not salary arrears of the retirees in accordance with the High Court and Court of Appeal judgments.

The Retired teachers through their advocate Mr. Kimatta pegs the same at Kshs.42. 3 Billion while the TSC and Director of Pensions states a sum of Kshs.16. 7 Billion.

This huge disparity is the subject of the application before me.

10. THE APPLICATION

By an application dated the 24th September 2018, TSC seeks directions and clarity on the following issues

(a) whether the judgment entered on the 23rd October 2012 required payment of unpaid gratuity and pension dues only and that there was no orders whatsoever on salaries.

(b) If the certificate of order entered against the Respondents (Government) for Kshs.16. 7Billion, can the plaintiffs claim anything over and above the Kshs.16. 7 Billion?

(c) Whether a finding of a court in contempt proceedings can amend and enter judgment to include awards not contained in the original judgment.

(d) Whether the purported enforcement of a non- existent judgment violates the Respondents right to fair trial contrary to Article 50 and 159 of the Constitution.

11. The Applicant (TSC) relies, as grounds for the application on the judgment of the Court Nakuru HCCC No. 65 of 2006, these Judicial Review proceedings and in particular the Notice of Motion dated 4th March 2012 when the plaintiffs sought an order of mandamus to compel the Director of Pension and TSC, to pay the retired teachers pension dues to them from 1997 to date which they stated to stand at Kshs.42. 3 Billion with accrued interest at 14% per annum, but without a formal Decree of the court.

12. The respondents (plaintiffs) filed their replying affidavits and submissions stating that there is no ambiguity in the sums payable to the retired teachers reiterating that it is Kshs.42. 3 Billion.

The Applicant, TSC as wells as Director of Pensions too filed their submissions to urge in support of their positions that the amount payable is Ksh.16. 7 Billion. Oral highlights were tendered by all the parties.

13. ISSUES FOR DETERMINATION

(1) Is it Kshs.42. 3 Billion or Kshs.16. 7 Billion?

(2) Whether the certificate of Order against the government is final.

14. The above background gifts a synopsis of the entire dispute. I shall, as much as possible, try not to repeat the same save where it may be necessary.

15. ANALYSIS OF AFFIDAVIT EVIDENCE SUBMISSIONS AND FINDINGS

Both disputants have filed detailed submissions in support of their rival positions. I have carefully scrutinized and considered them.

What the plaintiffs sought in the primary suit Nakuru HCCC No.65 of 2006is what they were granted. I have stated their claim and the reliefs earlier – See paragraph 4 and 5 above.

16. For clarity purposes, I shall repeat what the High Court judgment of the 23rd October 2012 gave to the Retired Teachers –

“…..are entitled to their retirement benefits being based on the entire salary increment contained in that agreement and circular. On the basis of that increment …… to pay to the plaintiffs and those they represent the unpaid gratuity and pension dues todate and base all their future pension payments on the entire salary of 1997 as per the particulars stated in paragraph 8 of the plaint …”

17. Paragraph 8 of the plaint states:

It is the plaintiff’s contention that under the said agreement they were entitled to all benefits stipulated therein which figure stands as follows with effect from 1st July 1997.

The figures were not stated, but Paragraph 7 talks of the Legal Notice No. 534/1997that gazetted the newly negotiated salary packages for the retired or waiting to retire teachers and granted the prayers the plaintiffs sought and ordered the applicants herein to pay in terms of the agreement and the TSC Circular No. 13/97(See Paragraph 4 above)

18. To that extent, the applicant TSC was obligated to compute payment to each teacher on the basis stated in the Judgments and to pay, and or liaise with the Pensions Department to pay the retired teachers.

19. The question I pose here is:

Has the TSC worked out these payments for each of the plaintiffs and those they represent, and if so, what was the lumpsum payment to all the teachers subject to the judgment, as at the commencement of this JR application in October 2012?

20. The plaintiff’s in their submissions filed on the 12th February 2019 urged the court to find that the plaintiffs had pleaded for unpaid salary arrears and increment which was granted by the High Court, and confirmed by the Court of Appeal. On Page 13, paragraph 2, it is stated that

“…..the teachers covered by the agreement of 1997 would be entitled to salaries allowances and pension due as contained in that agreement. In that appeal the applicant had complained that the global figure was Kshs.111 Billion while the respondent claimed Kshs.42 Million. Paragraph 8 of the grounds of appeal dealt with the issue of salaries.”

21. At page 6 of the Court of Appeal Judgment it was rendered that

“We note that the agreed lumpsum salary and other benefits were duly covered in terms of the teachers involved ...We therefore hold that the last salary should be computed in a way that incorporates all the terms of the agreement between the parties.”

22. From the above, I do not find that the Court of Appeal determined the lumpsum payment as Kshs.42. 3 Billion, or 16. 7 Billion or any other sum. What it alluded to in its judgment in my considered view, were the disputant’s proposals stated as “compound and claimed.” It did not come up with any lumpsum payment but, reiterated the High court’s holding on computation of the lumpsum, that it ought to be computed in a way that incorporates all the terms of the agreement between the parties, with a rider that it was the duty of TSC to work out the payments (Paragraph 18 above).

23. I have rendered that the duty to compute the lumpsum payments rests with TSC, in consultation with the Director of Pensions, upon TSC computing thelast salaryof each retired teacher.

In my opinion, the last salary does not mean salary arrears.

24. The applicants have annexed tabulations on the salary package – for the 20 plaintiffs representing the rest as follows:

At paragraph 15 of its submissions it shows –

The name and TSC No. of the teacher, pension number, lumpsum arrears, monthly pension arrears and total claim.

The figures stated therein have not been disputed by the teachers (plaintiffs No. 1-20), or at all.

25. It is admitted by the Retired Teachers Advocate, Mr. Kimatta that the last salaries upon which the lumpsum ought to be paid for 46,000 teachers has already been computed by TSC.

The said bundles of documents were produced to the court by TSC, and by consent of all for its consideration. They were filed on the 2nd July 2019. I have looked at them.

They show the number and identities of the retired teachers and computations of their last salaries with their employer, Teachers Service Commission as follows:

Notes one each is as follows.

Vol. I - Number of Teachers who retired between 1st July 1998 and 30th June 2003 – by each year, total – 20,229.

Vol. 2 - Shows the particulars of 560 teachers who exited service between 1st July 1998 and 30th June 2003.

26. The tabulations which are generally agreed to by all parties show

(1) Exit type - retirement, death and resignations on marriage grounds

(2) The exit salary and expected salary

(3) That the details have been extracted from the personal files of the individual teachers and maintained at TSC and verified with the payroll from the Director of Pensions.

(4) Teachers who existed on account of Death and have no national Identity Card numbers in the list.

27. Another document filed on the 15th December 2015 is a Schedule of Revised Pension claims submitted to the Director of Pensions for the relevant period.

I have seen that these lists (Schedules) are very detailed. They will no doubt assist all the parties to unravel the lampsum payable to the plaintiffs, upon the computations made by the TSC, with input and verified by the Director of Pensions as directed by the High Court and the Court of Appeal.

28. As much as these schedules show the last salary of each teacher upon which the pension ought to be calculated, they do not show the pension payable to each of them nor the lumpsum payable to all the plaintiffs/retired teachers covered under the relevant period.

29. In my very considered opinion lumpsum Pension to each of the retired teachers, subject of this application, and the 2012 judgment ought to be computed from the figures stated in these schedules, which is a joint function by TSC and the Director of Pensions Department.

30. GENESIS OF THE CERTIFICATE OF ORDER AGAINST THE GOVERNMENT IN THE SUM OF KSHS.16. 7 BILLION DATED 19TH JANUARY 2012.

This Judicial Review application was prompted by TSC failure to compute and forward for payment to the Director of Pensions the decretal sum ordered in the judgment.

The decree issued on the 4th April 2009was not a money decree, but declarations that had to be actualised into a money decree once all computations were worked out by TSC in consultations and or input by the Pensions Department as directed by the court.

31. By a chamber summons dated the 23rd March 2012 the plaintiffs (retired teachers) sought leave to institute these JR contempt proceedings citing, what they stated to be the unpaid sum of Kshs.16. 7 Billion plus costs and interest.

32. The basis of the Kshs.16. 7 Billion was explained to the Court (Emukule J) during interpartes hearing of the motion dated 27th September 2011 in the presence of Counsel for both parties whereof the plaintiffs sought an order of injunction against TSC and Director of Pensions not pay a sum of Kshs.3. 34 Billion provided in the June 2011/2012 budget, until the said parties provide a detailed statement as regards to who among the plaintiffs would benefit from the budgeted sum, and by how much.

33. Emukule J, upon hearing the application made the following orders:

(a)the defendant through the Pensions Department compute the total sum due to the Applicants as at 1st January 2004 todate and to do so within the next 90 days.

(b) The Applicant counsel to obtain a Certificate of Order for the said sum of Kshs.16. 7 Billion together with interest at court rates.

(c) The sum of Kshs.3. 34 Billion provided for in the current Government of Kenya Budget, subject to the said Certificate of Order, be paid to the applicants’ Advocates on record, in terms of Section 21(3) of the Government Proceedings Act.

(d)The computation referred to in sub- paragraph (a) shall in all respects comply with the judgment of the court and orders therein dated 23rd October 2008 and confirmed by the Court of Appeal in its judgment delivered at Nakuru on 12th November 2010, among other orders.

34. The above orders are plain and clear to me. They are neither ambiguous nor do they need elaborate interpretation. They are to be read in the context of the judgment of this court and against the backdrop of the reliefs sought and grounds thereof, in the plaintiff’s application dated the 27th September 2011. All parties were ably represented by counsel. The Court of Appeal upheld these orders. The Government of Kenya had provided, in its 2011/2012 budget some money for part payment of the retired teachers in the sum of Kshs.3. 34 Billion. This was part payment.

35. The plaintiffs did not wish to be paid in instalments, thus approached the court for an order of injunction, to stay such part payment, and to compel the Director of Pensions to provide a detailed statement as to who, among the plaintiffs, would benefit and by what amount, from the part payment.

36. While making the orders, the court was alive to the fact of the part provision of the payments. Being guided by the money provided for in the budget, in my opinion, it did the best it could, with what was available, hence the orders issued, and in particular, directed for the plaintiffs advocate to obtain the necessary legal instrument to facilitate the payment of the money budgeted for, being the certificate of order against the Government pursuant to Section 21(3) of the Government Proceedings Act, thus the sum of Kshs.16. 7 Billion.It is therefore clear that Emukule J did not amend Maraga J’s judgment at all. In that spirit of the judgment, Emukule J in his Order No (d), directed the Director of Pensions Department, to compute the total sum due to the plaintiffs, within a time frame of 90 days.

37. I agree with the plaintiff’s submissions that the Kshs.16. 7 Billion was not final nor was it verified, following which the judge directed computation in line with the court’s judgment. The computation would come up with the correct verified and final lumpsum, in my view.

I am minded that even as at the date of this ruling, computations for all the affected retired teachers is yet to be finalised, save for 46,000 whose computations are finalised leaving some 6000 retirees, if the number of retired teachers stands at 52,000 as stated in the plaint.

38. The court record is very clear on this, and more so evident, as only recently in February 2019, did TSC partly computed the payments for each individual beneficiary teacher, as evidenced by the bundles of documents filed on the 2nd July 2019, and an admission by the plaintiffs that full compliance has been achieved for about 46,000 retired teachers only.

39. The certificate of order against the Government for Kshs.16. 7 Billion is therefore neither verified, nor final, but interim, pending full compliance with the court’s judgment. The final computation could be less or more than the two figures stated by the rival parties.

40. Back to the certificate of order against the Government. Paragraph C provides for costs of the suit.

Below that, it is stated:

I hereby certify that the part amount payable to the plaintiffs/Decree holders by the defendant in pursuance of the said judgment (Decree) of 23rd October 2008 of the Hon. Justice D.K. Maraga and Orders of 19th December 2011, of Hon Justice M.J. Anyara Emukule is Ksh.16. 7 Billion together with interest therein from 23rd October 2008 until date of payment.

Dated at Nakuru this 19th January 2012

Issued this 20th January 2012

DEPUTY REGISTRAR

HIGH COURT OF KENYA AT NAKURU

41. The above summarises the two issues set for determination. I am persuaded that it was upon the above basis that the plaintiffs moved to seek leave to institute contempt proceedings by way of orders of Mandamus pursuant to Order 53 of Civil Procedure Rules to compel the Director of Pensions and TSC to pay the then budgeted for funds to the retired teachers.

The struggle to have the sum of KShs.1. 5 Billion released to the Director of Pensions for payment as at 2012 to the Teachers cannot be understated.

42. It is trite that parties are bound by their pleadings, and a party is not allowed to submit or call evidence on an issue not pleaded.

The court too cannot, and ought not to determine a matter that is neither pleaded nor proved, as to do so would be prejudicial and would cause injustice to the opposite partly – Independent Electoral Boundary Commission & Another –vs- Stephen Mutinda Mule & 3 Others (2014) e KLR, a principle reiterated by the Supreme Court in the Case Raila Amolo Odinga and Another –vs- IEBC & 2 Others (2017) e KLR.

43. It is also trite that Submissions filed or tendered by a party, either by itself or by its Advocates cannot replace the pleadings or take the part of evidence. Submissions are meant to support both the pleadings and the evidence.

44. I have earlier on stated the plaintiffs claims and the reliefs they sought as well as the judgment of this court.

I must state here and I am persuaded, that the plaintiffs had no claim for salary arrears or unpaid salaries, by whatever phrases.

In the two judgments that I have very keenly read, I have not seen any phrase or holding where the High Court or the Court of Appeal talk of salary arrears or unpaid salaries.

If the teachers (plaintiffs) had any unpaid or arrears of salaries from its employee TSC, it would have been the easiest thing to plead, in clear and plain terms.

45. The Court of Appeal determined, just like the High Court, that TSC would compute the last salary not salary arrears, for each of the plaintiffs incorporating the benefits stated in the agreements between the Teachers Union (KNUT) and themselves. In the premises, the retired teachers cannot get that which they did not plead nor would the court grant which had not been pleaded.

Further no evidence was adduced to prove salary arrears or at all.

46. The certificate of order against the Government in the sum of Ksh.16. 7 Billion was thus properly anchored on specific and stated grounds, on the amount the Government had budgeted for at the time, for the part payment of the retired teachers’ dues. As stated in the body of the certificate, it was part payment, the final certificate has to await TSC’s full and final computation as directed in both this Court’s judgment, and the Court of Appeal.

47. As to the Kshs.42. 3 Billion the same fate befalls it. It is not a certified sum, having not been computed for all the beneficiaries. I say so because, as at the time of this ruling, the computations for all the beneficiaries is yet to be completed. I have given my reasons for my findings earlier, the plaintiffs stating that only 46,000 teachers computations have been completed and the task ongoing.

48. Accordingly, the answer, in my opinion, to “is it Kshs.16. 7 Billion or 42. 3 Billion” is a plain and clear NO, NEITHER OF THEM.”

49. In the end, and having done the best I can do to give clarity to the learned Judges judgments, and not in any way trying to give any different interpretations from those that were intended, I register my gratitude to learned counsel who filed very detailed and well researched submissions which were of great help to me.

50. Herebelow I summarise and give directions and clarity to the stated issues:

(a) That the judgment of the High Court delivered on the 23rd October 2008 by the Hon. D.K. Maraga J (as he then was) required payment to the plaintiffs of their retirement benefits being based on the entire salary increment contained in the agreement between the teachers union KNUT as read with TSC Circular NO.13 of 1997, only, and that being the serving Teachers, or on leave pending retirement, there were no salary arrears to be factored into the payments or benefits, the same having been ordered computed and to be based on the entire salary increments.

(b) That means therefore that before the total and final lumpsum computations are done, the increment on salaries has to be factored in, then the retirement benefits calculated based on the increased salaries for each retired teacher subject of these proceedings.

(c) The certificate of order against the Government dated 19th January 2012 for Kshs.16. 7 Billion and issued on the 20th January 2012, was an interim certificate pending full compliance by TSC and Director of Pensions Department, of the court’s judgment. This is clearly stated under Paragraph (C) thereof, that it was part payment to the plaintiffs/Decree holders pursuant to the judgment of the court.

(d) I have also come to a further finding that the decretal sum is also not Kshs.42. 3 Billion, there being no basis for such sum. The final certificate against the Government shall only be arrived at upon full compliance by the Applicants of the court’s judgment (details in the body of this ruling).

(e) A finding of a court in contempt proceeding cannot amend or vary a judgment of a court in any way unless, upon an order of review, variation or upon appeal. It is a further finding, in the context of the application before me, that the Hon. Emukule’s ruling dated the 19th December 2011 did not amend, vary or add any awards not contained in the original judgment.

(f) In the context of the subject matter of this ruling, there is a valid judgment dated the 23rd October 2012 which was upheld by the Court of Appeal by its judgment dated the 12th November 2010 in Civil Appeal No. 300 of 2009. That Judgment is enforceable by a valid decree of the court, currently, by the interim certificate of Order against the Government issued on the 20th January 2012 in the sum of Kshs.16. 7 Billion pending full computation of the sums payable to each of the retired teachers subject of this application.

(g) This application being of interest to all the parties, and upon exercise of my discretion and powers donated under Section 27 of the Civil Procedure Act, and taking into account the nature and circumstances pertaining thereto, I order no costs payable to, or by, any of the parties.

Delivered, Signed and Dated at Nakuru this 17th Day of October 2019.

……………….

J.N. MULWA

JUDGE