[2019] KEHC 7057 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

CIVIL SUIT NO. 17 OF 2014

UBAH ISMAIL MOHAMED................................PLAINTIFF

VERSUS

1. GAPCO KENYA LIMITED

2. KENYA RAILWAYS CORPORATION......DEFENDANTS

R U L I N G

1. The defendant has raised an objection grounded on Section 83 of the Kenya Railways Corporation Act that this court lacks jurisdiction to entertain the suit because the cited provision expressly prohibit and further that the suit is premature for failure to comply with the mandatory requirement of Section 87 (a) on account of the fact that no notice was issued prior to the institution of the suit.

2. The objection was argued orally by either side citing to court a decision each on their rival positions. For the defendant, Mr. Karisa did file a list of some five authorities but at the hearing he never relied on any of those decisions instead opting to rely on the decision in Mwavuno Group Ranch vs National Land Commission & Others, CACA No. 115 of 2018 (unreported) whose gist was that where parliament has prescribed a mechanism for dispute resolution a party is not allowed to willy-nilly run to court before exhausting the statutory redress system provided. To counsel the statute prohibited filling of suit against the defendant when exercising its statutory duty under Section 13 unless the party seeks compensation agreed between the parties or determined by an arbitrator appointed by the Chief Justice.

3. For the plaintiff the objection was resisted on the basis that the provision relied on affronts the right to access justice and right to a fair hearing and contrary to the dictates of articles 159 and 259 of the Constitution which mandate that justice be administered substantively with the court being required to advance the rule of law and fundamental freedoms towards good governance to achieve and realize the constitutional value systems.

4. Counsel them added that there is no mischief that can be identified to have been intended for cure by Section 83(1) while stressing that the provision needs to be interpreted in conformity with the constitution under Schedule 6 of the Constitution or else it runs contra the constitution.

5. Counsel then cited to court the decision in Apollo Mboyav Attorney General & 2 others [2018] eKLR in which the court, Mativo j, held that the purpose of the court is to apply and uphold the constitution impartially.

6. In response to the plaintiff submission Mr. Karina made submissions to the effect that every statute is presumed constitutional. He contended that the Act does not impede access to justice nor does it affront the constitution.

7. It may be noted that the Preliminary Objection as filed was two pronged being grounded on both sections 83 and 87 of the Kenya railways Corporation act, but Mr. Karira, in his argument, only urged one aspect; Section 83(1). For completeness in this determination, I will start with the unurged portion and ask whether failure to comply with Section 87(a) makes the suit premature bad and subject to being struck out or dismissed.

8. This requirement of at least 30 days’ notice is not peculiar to the Kenya Railways Corporation Act alone. It is found in other statutes creating state corporations like the Kenya ports Authority Act, section 62, and carries the spirit of Section 13A Government Proceedings Act. I note that the superior courts of this county have variously pronounced themselves on how well Section 13A Government Proceeding Act sits with the right to access justice and the concurrence is that the provision is not in congruence with the right to access justice[1].

9. The often quoted decision is that by Majanja J, in Kenya Bus Services Ltd & Another vs Minister for transport and 2 others [ 2005 ] eKLR where the judge said:-

“viewed against the prism of the constitution, it alsobecomes evident that Section 13A of the GPA provides animpediment to access to justice. Where the state is at the front, left, right and Centre of the citizens life, the law should not impose hurdles on accountability of the government through the courts. An analysis of the various reports for commonwealth which I have cited clearly demonstrate that the requirement for notice particularly where it is strictly enforced as a mandatory requirement dismisses the ability of the citizens to seek relief against the government. It is my finding therefore that Section 13A of the Government Proceedings Act as a mandatory requirement violates the provision of Article 48”.

10. Those words have been adopted in several subsequent decisions which are well reported and it should be noted that the words of Section 87 are materially those of the Section 13A Government Proceedings Act. I thus do not hesitate in finding that to give an interpretation to that provision to make a suit bad for failure to comply would be contra the constitution and wholly defeatist.

11. I may only add that the inclusion of that protection in the law for the defendant was wholly unmerited. I understand the need for protection of the government of Kenya is its extensive and expansive nature totally different from the nature and structure of the defendant which, even though government owned, is compact and well established with adequate legal personnel to deal with court processes as and when they arise.

12. Before I conclude on this aspect it may only be necessary to remind myself of what the Court of Appeal said in Kenya Revenue Authority vs Habimana & Another (2015)eKLR to the effect that:-

“……it is not necessary that a party who finds itselfon the wrong side of the appellant would be greatly prejudiced if they are shaded from accessing justice for a minimum of 30 days as happens many times’.

“……it is nonetheless an autonomous, cooperatestatutory body specifically with powers to sue and be sued. The appellant cannot hide behind the clock of the Attorney General when it is accused of breaking the law or otherwise violating people’s rights purely in Order to take advantage of the 30 days statutory notice”.

12. In Bob Thumpson Dickens Ngobi vs Kenya Ports Authority, this court had the opportunity to consider a similar provision in Kenya Ports Authority Act and it did hold that:-

“For that reason, I am bound by the Court of Appeal [2] add my voice to those of my brothers, Mbogoli Msagha[3], David Majanja[4], J.B. Ojwang[5] and Osieno JJ[6] and hold that a statutory corporation, unless the creating statute says otherwise, is not an appendage or department of the Government as contemplated under the Government Proceedings Act. One need not invite the application of the Government Proceedings Act when parliament in its own wisdom has spended time and public resources to enact a statute to regulate the body so desired to be created.”

13. It follows therefore that failure to issue a Notice before action is not a fatal defect as to lead to an action being defeated by being guillotined.

14. How about Section 83(1) of the Railways Corporation Act? That Section provides:-

“In the exercise of the powers conferred by sections 13, 15,16 and 17, the Corporation shall do as little damage as possible, and where any person suffers damage no action or suit shall lie but he shall be entitled to such compensation therefore as may be agreed between him and the Corporation or in default of agreement, as may be determined by a single arbitrator appointed by the Chief Justice”.

15. That provision indeed prohibit bringing of a suit or action for recovery of damages arising out of execution of by the corporation of its mandate under Section 13, 15, 16 & 17 of the Act. Compensation for such damage is then dictated to be agreed between the corporation and the injured and on default an arbitrator be appointed by the Chief Justice. Clearly the claims outlawed from being pursued in court are those seeking compensation for damage occasioned. The sort of activities for which the corporation is shielded are those for which it is entitled to execute as a statutory body and its ancillary right to enter any land and carry out survey and to carry away excavated material or timber, enter land to prevent occurrence of an accident or enter land to alter position of pipes.

16. In this matter, the plaint does seek orders for specific performance and injunction which are not the type of remedies that Section 83(a) mandates to be agreed upon or be arbitrated. Accordingly I do not agree that for such reliefs the court’s unlimited jurisdiction has been ousted. For a court’s jurisdiction to be ousted, the law is that the ouster clause must be firm and unambiguous.[2] Here there is no ambiguity on what needs to be agreed upon or mediated.

17. Secondly the request by the 2nd defendant for dismissal of the suit is omnibus and not directed at the suit against it alone. Would that imply that the 2nd defendant proposes to donate and accord to the 1st defendant the statutory protection given to it by parliament? Further, a suit that is bad in law deserving being terminated or guillotined summarily before hearing, cannot be dismissed but can only be struck out.

18. For all the above I do find no merit in the notice of preliminary objection dated 2/10/2014 which I order to be dismissed with costs. Having so done, and noting that the lease between the plaintiff and the 2nd defendant was time bound and could have effluxed, I direct that the matter be mentioned on 30/5/2019 for parties to address the court on the way forward.

Dated and delivered at Mombasa on this 22nd day of May 2019.

P.J.O. OTIENO

JUDGE

[1] See council of Governors & 3 Others vs the Senate & 53 Others [2015] eKLR, Kenya Revenue Authority vs Habimana Sued Hemed [2015] eKLR, Gurdoba Enterprises Ltd vs Kenya Revenue Authority, HCC No. 676 of 1998 Kenya Bus Services Ltd & Another vs Minister for transport & 2 Others[2012]eKLR, Menginya Salim Murgani vs Kenya Revenue Authority HCCC No. 1139 of 2002, Habimana Sued Hemed vs Kenya Revenue Authority & Another HCCC No. 364 of 2001

[2] Judges and Magistrates Vetting Board vs the centre for Human Rights and Democracy & Others [2013] eKLR