[2014] KEIC 2 (KLR)

Wanjiku & 10 others v Chief Registrar of the Judiciary & another (Cause 912 of 2014) [2014] KEIC 2 (KLR) (Employment and Labour) (30 September 2014) (Judgment)

Agnes Wanjiku &10; others v Chief Registrar of the Judiciary & another [2014] eKLR

Neutral citation: [2014] KEIC 2 (KLR)

Republic of Kenya

In the Industrial Court at Nairobi

Employment and Labour

Cause 912 of 2014

DKN Marete, J

September 30, 2014

Between

Agnes Wanjiku

1st Claimant

Benjamin Mwangi

2nd Claimant

Bridgit Kasembeli

3rd Claimant

Caroline Wangui

4th Claimant

Edwin Waithaka

5th Claimant

Godfrey Bwire

6th Claimant

Jacob Kipkurui

7th Claimant

Loise Juma

8th Claimant

Kenneth Kibiru

9th Claimant

Paul Mundia

10th Claimant

Victor Odundo

11th Claimant

and

Chief Registrar of the Judiciary

1st Respondent

The Judicial Service Commission

2nd Respondent

Judgment

1On 30th May 2014 this matter was filed in court by the claimants. It was originally initiated vide an application by way of Notice of Motion of the same date and brought to court under a certificate of urgency. The application, also accompanied by a statement of claim sought the following orders of court;1That , this Application be certified as urgent and that it proceeds ex parte in the first instance.2That , pending inter partes hearing, Order of Injunction do issue to temporarily quash the Respondent’s Letter of Termination dated 1st May, 2014. 3That , pending interpartes hearing, a Conservatory Order issue restraining the termination of the Claimants pending the hearing and determination of this application.4That , pending inter partes hearing, Respondents be restrained and prohibited from employing replacement labour and/or employees in the same positions to perform the same or similar work as the Claimants pending hearing and determination of this application.5That , the Respondents be ordered to release Claimants salaries withheld for the months of April and May 2014. 6That pending hearing and determination of this application the employment of the Claimants be maintained.7That an order be issued to convert the Claimants employment to term contract without loss of privileges and promotions8That such or further orders issue to facilitate just, expedious, effective, efficient and fair determination of this application and the Claim.and grounded as follows:aThat , the 1st Respondent in showing open contempt to Constitution and Employment Act provisions purported to issue a Notice of Termination of Contract for 30 days and intentionally served it on 26th May 2014 in 5 days to the exit of employment of service of the Claimants and the end of the notice period.bThat , the 2nd Respondent having employed the Claimants for close to 2 years has refused, neglected and or failed to issue the Claimants with written contracts spelling out their terms of service or clear employment particulars.cThat , the Respondents have contrary to Article 41(1) and 50 of the Constitution of Kenya, 2010 and Employment Act, 2007 provisions mentioned in the volume of the application failed to give the Claimants a hearing before the termination of their services.PARAdThat , the Respondents have contrary to explicity [explicit] legal provision in Employment Act, 2007 failed to issue Notice or proper Notice of Termination of Service or in the alternative make payment in lieu of notice to the Claimants thereby occasioning the Claimants loss and damage.eThat , the 2nd Respondent having created reasonable expectation in the Claimants for long term permanent and pensionable service has neglected to issue an itemized pay statement and seeks to unlawfully terminate the Claimants services while holding their salaries.fThat , the Respondent has employed discriminative employment policy and practices in relation to the Claimant appointment, remuneration, employment benefits, training and development performance evaluation system and termination (sic).

2The Statement of Claim also dated 30th May, 2014 cites the following as issues in dispute;1Unfair, unlawful and wrongful termination of the Claimants;2Employ of discriminative employment policy and practices by the Respondents against the Claimants;3Unlawful and illegal withholding or non-payment of the Claimants’ salaries total to Kshs.484, 000. 00 as at May 2014.

3On 12th June, 2014, the claimants/Applicants filed an Amended Notice of Motion seeking the following orders;1That this application be certified as urgent and that it proceeds ex parte in the first instance2That, pending inter partes hearing, Order of Injunction do issue to temporarily quash the Respondent’s Letter of Termination dated 1st May, 2014. 3That, pending inter partes hearing, a Conservatory Order issue restraining the termination of the Claimants pending the hearing and determination of this application.4That, pending hearing, Respondents be restrained and prohibited from employing replacement labour and/or employees in the same position to perform the same or similar work as the Claimants pending hearing and determination of this application.5That, the Respondents be ordered to release Claimants salaries withheld for the month of May, 2014. 6That the Claimants be reinstated to their proper and appointed place of work.7That the Respondents be ordered to release underpayments of the Claimants’ salaries totaling to Kshs.231,000/=.8That an order be issued to convert the Claimants employment to term contract without loss of privileges and promotions, seniority and salary.9That such or further orders issue to facilitate just, expeditious, effective, efficient and fair determination of this application and the Claim.and grounded as follows;aThat, the 1st Respondent in showing open contempt to Constitution and Employment Act provisions purported to issue a Notice of Termination of Contract for 30 days and intentionally served it on the 26th May, 2014 in 5 days to the exit of employment service of the Claimant and the end of the notice period.bThat, the 2nd Respondent having employed the Claimants for close to 2 years has refused, neglected and or failed to issue the Claimant with written contracts spelling out their terms of service or clear employment particulars.cThat, the Respondents have contrary to Article 41(1) and 50 of the Constitution of Kenya, 2010 and Employment Act 2007 provisions mentioned in the volume of the application failed to give the Claimants a hearing before the unlawful, wrongful and unfairly summary dismissing their services(sic.)dThat the Respondents have contrary to explicitly (explicit) legal provision in Employment Act, 2007 failed to issue Notice or proper Notice of Termination of Service or in the alternative make payment in lieu of Notice to the Claimants thereby occasioning the Claimants loss and damage.eThat the 2nd Respondent having created reasonable expectation in the Claimants for long term and pensionable service has neglected to issue itemized pay statement and has unlawfully summarily dismissed their service while holding their salaries.fThat the Respondent has employed discriminative employment policy and practices in relation to the Claimants appointment, remuneration, employment benefits, training and development performance evaluation system and termination.gThat by operation of the law the 2nd Respondent ought to have converted the Claimants terms of employment and paid them commensurate salaries indicated in its salary scale for permanent staff in the same cadre as the Claimants.hThat the Respondents should not issue termination letters without grounds of dismissal/termination and a pre-dismissal hearing.iThat it is the statutory duty of the employer, the 2nd Respondent to cause to be drawn an employment contract particularizing the terms of service and failure, neglect or refusal to do so is unlawful.

4This was also followed by an Amended Memorandum of Claim raising the following issues in dispute;1Unfair, unlawful and wrongful summary dismissal of the claimants;2Employ of discriminative employment policy and practices by the respondent against the claimants;3Unlawful and illegal withholding of the claimants salaries totaling to Kshs.231,000. 00;4Unfair labour practices by the respondents contrary to Article 41 of the Constitution of Kenya, 2010;5Non-payment of the claimant’s terminal dues and benefits

5Let it be borne in mind that this court, in a bid to expedite the matter and with a view to fastidious delivery of justice had by its orders of 7th June, 2014 we made orders on filling of responses by the parties and set the cause for hearing and disposal of both the application and the amended claim on 18th July, 2014. It is also at this juncture that the Claimants filed a Notice to Produce Documents dated 13th June, 2014 and filed on 16th instant.

6The Respondents on the other hand filed their Response to Amended Memorandum of Claim dated 24th June, 2014 on the subject. This was followed by a Replying Affidavit sworn on 1st July, 2014 and a Respondents list of documents filed on 23rd July, 2014. The Respondents on 7th July, 2014 also filed witness statements both dated 4th July, 2014 by the Registrar of the High Court and also the Registrar of the Judicial Service Commission.

7The Claimants/applicants on 4th July, 2014 also filed a supplementary affidavit sworn (purportedly) on 7th July, 2014. A reply to the Respondents Response dated the 1st July, 2014 was also filed by the claimants on 2nd July, 2014 while on 7th July, 2014, the claimants filed the 3rd list of authorities.

8It is on this date and hearing that the Respondents submitted on their intention to file recusal proceedings against the trial Judge. This was addressed with the Respondents being awarded time to consult and file the application within two (2) days and Claimants being awarded seven (7) to make, file and serve a response to the application. This application was set for hearing on 18th July, 2014 when it was indeed heard inter partes and a ruling made on 30th instant.

9At the date of ruling on 30th July, 2014 this matter was set for hearing on 18th September, 2014 at 1400 hours. However, on the instigation and agreement of the parties this was moved to 16th September, 2014 at 1400 hours instant.

10On 16th September, 2014 when the matter came for hearing, the Respondents did not appear and were not represented. This was informed to court by the submission of counsel for the Claimants ostensibly on grounds that the hearing date was imposed onto the Respondents by the court and also that there were some witnesses who are senior judicial officers in the judiciary and Judicial Service Commission and would not be able to attend the hearing as they were conducting interviews. The claimants did not agree with this reasoning for various reasons and urged the court to proceed with the hearing, the circumstances notwithstanding. The court ruled in their favour and the hearing proceeded without the Respondents.

11The court ruled and directed that it is notable that vide the orders of this court made on 13th June, 2014 aforementioned and due to the state and circumstances of the case, the court had made orders consolidating its hearing in finality and also fast-tracking the hearing of the suit to the 4th July, 2014 at 900 hours. A mention was scheduled for 26th June, 2014 for confirmation of compliance on filing of responses by the Respondents and confirmation of the hearing date. Here, the hearing date was fixed for 7th July 2014 at 900 hours. On the said date of hearing the Respondents instead intimated an application for recusal of the trial judge from these proceedings. The court did not have a choice but to allow the Respondents time and space to file the application with a reciprocating leave to the Claimants to respond to the same within set time lines. This application was scheduled for hearing on 18th July, 2014 at 1100 hours. This was ultimately heard and the Court in its ruling dismissed the application for recusal of the trial judge.

12And now we move on to the analysis of the cases of the Parties. The Claimants case is that the claimants have been continuous and uninterrupted employees with the Respondents for about two years since 2012. They have served as court clerks to the judges of the superior courts, registry clerks in the superior courts and secretaries to judges of the superior courts. The claimants also claim and aver that during their employment they have received training to enhance their performance as judicial staff.

13The claimants further contend and submit that they were to be paid a facilitation amount of Ksh.1, 000. 00 per day on commencement of employment. The claimants were subsequently and through a meeting transferred to the Industrial Court by a Mr. Jackson Ngila, Executive Officer on or around November, 2012 on directions from the Registrar, High Court of Kenya. The transfer brought a worrisome state of affairs as the claimants pay in the new station was Ksh.450. 00 exclusive of an amount of Ksh.50. 00 which was explained as tax. No explanation was made on their balance of pay of Ksh.500. 00.

14Later and in the course of time the claimants in their employment undertook and were invited to attend and participate in various workshops and trainings organized by the Respondents as follows;9. That subsequently, the claimants were invited to participate in numerous workshops and trainings organized by the respondents herein such at the Sportsman’s ARMS Hotel from 29th November, 2012 to 1st December 2012 and the Judiciary Transformation Workshop held from 17thFebruary, 2013 at Bontana Hotel.10. That the training such as the Judicial Transformation Framework Workshop were geared towards involving judicial staff and particularly employees, in the quest to improve and enhances delivery of justice in the Judiciary these training were typically meant for employees in the permanent and term contracts11. At the Judicial Transformation Framework Workshops the claimants were subjected to a structured evaluation process vide Judicial Staff Evaluation forms. … The respondents however unlawfully and unfairly declined to return the assessment forms of the said evaluation denying the claimants on how their faired professionally in the workplace and areas they needed to improve on12. Further at the Judicial Transformation Framework Workshop, the Claimants were encouraged to improve themselves academically and professionally. In the same breath the Claimants decided to undertake further academic studies with some enrolling in university Degree courses to compliment their academic qualifications…..13. That after their trainings, the Claimants were issued with certificates of participation….

15This was all geared at boosting service delivery by judiciary staff with a view to enhancing the delivery of justice. These trainings were meant and intended for permanent, pensionable and term contract employees but also involved the claimants. The claimants further aver and submit that at the judicial workshop they were encouraged to enhance their academic prowess and professionalism leading to their enrolment for further academic programmes, some at universities. They were issued with certificates of participation for these training.

16The Claimants further submit that the action of termination of employment by the Respondents is also a violation and transgression of paragraph 3. 2.1:KRA 4 on philosophy and culture of Judicial Transformation Framework which provides as follows:-A progressive philosophy requires imaginative jurisprudence from the Bench, and a responsive staff from the Registry. In this Framework, accountability, integrity, openness, results and humility are values that will undergird the decision design of the Judiciary and inform the daily conduct of its staff.

17This also is a violation of paragraph 3. 2.3. : KRA 6 on Organization Structure providing as follows:-Every staff recruited, from Judges and Magistrates to Judicial Staff, will undergo a formal induction process and will have formal job descriptions. A continuous learning and training programmes will be institutionized at JTI.

18The Claimants observe breach on the part of the Respondents as they have not todate issued formal contracts or formalize their job descriptions despite attendance and participation in numerous trainings and workshops. The reference to themselves and student clerks and casuals is also a violation of employment and labour law and fair labour practices by the Respondents.

19The Claimants further case is that the respondents knowingly caused the claimants to formulate reasonable expectation for long term employment and pensionable services through encouraging and facilitating the claimants participation in trainings and workshop intended for permanent and pensionable staff as well as retention for 2 years while performing similar value work as the permanent employees.

20The Claimants further submit that the respondents have with impunity transferred, breached and violated the claimants rights and freedoms as enshrined under Articles 27, 28, 40, 41 and 50 of the constitution of Kenya, 2010 and section 5 of the Employment Act. This transgression also includes a violation of the rules of natural justice by their decision to unlawfully, unfairly and wrongfully terminate their employment. This, they posit and submit, was biased and was not grounded on any lawful reasoning. They put this as follows:-50. In violation of sections 41 and 43, 44 and 49 of the Employment Act, the respondents unlawfully terminated the claimants with no hearing prior to termination nor did they provide reasons for termination in their erroneous termination notices issued to the claimants. That the summary dismissal of the claimants is substantially unprocedural unlawful and unfair.

21The Claimants finally aver and submit that they have suffered loss and pray and seek relief as follows;1That the respondents be ordered to release the claimants salaries withheld for the month of May 2012 totaling 231,000. 00;2That the respondents be ordered to release underpayments of the claimants’ salaries totaling Kshs.12,122,991. 00;3Service/Gratuity pay of kshs.980,889. 03 as tabulated under paragraph 59;4That the respondents be ordered to make payments for the unlawful deductions as tabulated at paragraph 60 totaling kshs.990,000. 00;5That the respondents be ordered to convert the claimants employment to permanent and pensionable contracts without any loss of privileges, benefits and promotions;6That the respondents be restrained and prohibited from employing any replacement labour and/or employees in the same position to perform similar duties as the claimants until this suit is heard and finally determined;7That the claimants be reinstated to their appointed place of work;8That a declaration that the service of the termination letter dated 1st May 2014 on 26th May, 2014 was unlawful and the claimants are entitled to damages ;9Payment of one month’s salary in lieu of notice;10Issuance of claimants with Certificate of Service;11Constitutional damages for unfair labour practices;12In the alternative and without prejudice to the above the respondents be ordered to pay compensation for premature and unlawful summary dismissal payment in full amount of salary until their retirement age of 60 years as tabulated in paragraph 58 totaling kshs.96,096,000;13General damages and costs of this suit; and14Any other relief that this honourable court may deem just and fit to grant.

22The Respondents case as presented in their Response to Amended Memorandum of Claim and Replying Affidavit to Amended Notice of Motion in this cause is a total denial of the claim by the Claimants. From the onset, they raised issues on the viability and substance of the claim against the 1st Respondent. They argue and submit that the 1st Respondent is the Secretary to the Judicial Service Commission – the 2nd Respondent under the provisions of Article 171 (3) of the constitution. In the exercise of her delegated powers she does not act on her own behalf but on behalf of the commission and therefore the fallacy of enjoining her in her personal capacity.

23The Respondents further submits and states that the 2nd Respondent is established under Article 171 of the constitution and her function spelt out under Article 172. This is as follows;6That, the following constitutional and statutory provision govern the appointment of Judicial Staff;iArticle 171 (1) (c) of the Constitution provides that the Judicial Service Commission has the mandate to appoint, receive complaints, investigate and remove from office or otherwise discipline Registrars, Magistrates, other Judicial Officers and other staff of the Judiciary in the manner prescribed by an Act of Parliament. The Judicial Service Act, Act No.1 of 2011, was enacted to give effect to Article 171 of the Constitution.iiArticle 172 (2) of the Constitution provides that the Judicial Service Commission shall be guided by competitiveness and transparent process of appointment of Judicial Officers and other staff of the Judiciary.iiiSection 3 of the Judicial Service Act provides for the object and purpose of the Act. In particular Section 3 (a) and (h) provides that the Act shall ensure that the Commission and the Judiciary shall be organs of management of Judicial service and the administrative manifestation of the Judiciary’s autonomy and inherent power to protect and regulate its own process. The Judicial Service Commission achieve this objection through application of principles set out in the Constitution and other laws.ivSection 32 of the Judicial Service Act, 2011 provides for appointment, discipline and removal of Judicial Officers and Staff. The Commission constitutes a committee or panel for purposes of appointment and disciplining of Judicial Officers and other Judicial Staff.vThe appointment of members of staff of the Judiciary is governed by the Third Schedule of the Judicial Service Act and in particular Part 111 of the schedule.viRegulation 8and 9 of the Third Schedule expressly provide that the Chairman of the Commission shall be informed of all vacancies and all applications for appointment to vacancies shall be invited by public advertisement or where a vacancy need not be advertised, the position shall be filled by appointment or reappointment of a public officer on temporary terms. I confirm that all appointment even temporary appointments must be approved by the Commission.viiSection 14of the Third Schedule of the Judicial Service Act gives the Commission to adopt special procedures relating to appointments, where public interest requires.

24Further, the judiciary has a scheme of service and human resource policy which governs the employment of all members of staff. The Claimants were never employed by the Commission as no resolution was passed by the Commission regarding their employment as required by the law. The Claimants have not displayed any letters of appointment by the Commission and consequently their claim must be dismissed with costs. This, the Respondent submit is also a testimony that indeed they are not employees. They are and were not employees of the Respondents.

25The Respondents in further response to the Claimants case and submissions state as follows;iThat the 1st Claimant, Agnes Wanjiku applied for internship in the Judiciary and by a letter dated 9th October 2012, she was offered attachment in the secretarial pool at Milimani Law Courts. The duration of attachment was three (3) months with no pay. The Claimant was issued with a recommendation letter dated 23rd January 2013 and a release letter dated 30th October 2013. The 1st Claimant was officially released from her duties with effect from 7th November 2013. However, she irregularly continued to work at the Judiciary without any express authority….iiThe 2nd Claimant, Benjamin Mwangi applied for practical attachment to the Judiciary and by a letter dated 13th August 2012, he was offered attachment at the High Court Civil Archives at the Supreme Court. The duration of attachment was three (3) with no pay….iiiThe 3rd and 4th Claimant, Bridget Kasembeli and Caroline Wangui were secretaries on attachment and reported to the Judiciary on 29th September 2012. ivThe 5th Claimant, Edwin Waithaka was appointed as a student clerk on temporary terms for a period of one (1) year by a letter of appointment dated 30th November 2012. The Claimant was to be paid Kshs.1000. 00 per day excluding weekends…..vThe 6th Claimant, Godffrey Bwire applied for attachment to the Judiciary and his application was received on 11th July 2012. The Claimant was offered attachment on 16th August 2012 at the Milimani Chief Magistrates Court. He was issued with a recommendation letter dated 27th August 2013 which indicated that he had worked at the Industrial Court as a clerk on temporary basis from September 2012 to 31st August 2013….viThe 7th Claimant, Jacob Kipkurui was on practical attachment at the High Court, Criminal and Civil Registries for a period of eight (8) weeks with effect from 3rd September 2012. He was issued with a recommendation letter dated 17th January 2012, which indicated that he had worked at the Industrial Court as a clerk on temporary basis from September 2012 to 31st August 2013……viiThe 8th Claimant Loise Juma was a student on practical attachment as a secretary. She reported on 23rd February 2013. viiiThe 9th Claimant, Kenneth Kibiro worked at the Industrial Court as a clerk on temporary basis from September 2012 to 31st August 2013. He was issued with recommendation letter dated 27th August 2013 which indicated that he had worked at the Industrial Court as a clerk on temporary basis from September 2012 to 31st August 2013….ixThe 10th Claimant, Paul Mundia applied for practical attachment to the Judiciary by a letter dated 13th August 2012 he was offered attachment at the High Court Civil Archives at the Supreme Court. The duration of attachment was three (3) months with no pay. He was issued with a recommendation letter dated 27th August 2013 which indicated that he had worked at the Industrial Court as clerk on temporary basis from September 2012 to 31st August 2013…..xThe 11th Claimant, Victor Odundo was offered practical attachment by an internal memo dated 22nd October 2012. The Claimant was attached at the High Court Family Division…..

26The Respondents annex letters to this extent to their Replying Affidavit sworn on 1st July 2014 and marked AA1 to AA8. The Affidavit and Response to Amended Claim also offer other evidence and data on developments pertaining to the employment of the Respondents as analysed and displayed in the foregoing parts of this judgement.

27The respondents state and submit that by an Internal Memorandum dated 25th February, 2013 from the High Court Attachment Coordination to the Registrar High Court as pleaded in paragraphs 18 and 19 of the Amended Claim the 1st, 3rd, 4th, 6th, 7th, 8th, 9th and 11th claimants were always students on attachment and were available for one year and could be placed on contract employment. This was not done at the close of their terms. Again the 2nd, 5th, 7th, 9th, 10th and 11th claimants were during the attachment requested (deployed) to assist in organization of records at the Industrial Court Archives and were attached thereon from 21st November 2012 to 20th December 2012. An honorarium was paid to them on completion. It is also admitted that the claimants were paid allowances variously as they were on temporary engagement but due to the temporary nature, no statutory deductions on payment could be effected either to the NSSF or NHIF.

28The Respondents further deny that participation of the claimants in the Judicial Transformation Workshops as pleaded in the claim (paragraph 9-16) did not confirm that they were employees or change their status or at all. Further, the meeting of the Industrial Court staff held on 13th January, 2014 as pleaded at paragraphs 13-36 of the Amended Claim is a confirmation that the claimants were not employees of the Judiciary. This is further evidence that the notion of reasonable expectation as espoused in the pleadings and evidence of the claimants was a fallacy.

29The respondents cite that pursuant to the provisions of Regulation 14 of the Third Schedule of the Judicial Service Act, the Human Resource Committee at its meeting o 21st March, 2014 rightly resolved to release the claimants. This was indeed a lawful exercise of their mandate as per section 3(g) of the Judicial Service Act and was bent to correct the occurring irregularity. They further deny that this was unconstitutional and lawful, discriminatory, wrong, unfair or illegal as claimed. They further deny that the claimants are entitled to monies in compensation as claimed in paragraphs 58, 59, 60 and 61 of the Amended Claim.

30In the penultimate, the respondents deny that the claimants are entitled to reinstatement as they were on attachment and would not qualify for reinstatement or employment. The claim and relief sought is therefore not meritorial and in so doing the claimants seek to emasculate the Commission in the discharge of its constitutional mandate. Further the respondents submit that this suit is misconceived and does not disclose any reasonable cause of action in law and pray that the same be dismissed with cost.

31The respondents’ position on this subject is particularly expressed under the following paragraphs of the Replying Affidavit sworn on 16th July, 2014. 7That the claimants were never appointed or employed by the Judicial Service Commission as required by law. This is confirmed by the fact that the claimants have not exhibited or produced any letters of appointment from the commission.8That the claimants were all offered internships and attachments to the judiciary on their respective applications. They were not employed as casuals as they allege.…9. ......10That while the claimants were on attachment, the Industrial Court was in the process of being organized as one of the Divisions of the judiciary and there was shortage of staff as the defunct Industrial Court was under the Ministry of Labour.11That the Registrar of the High Court, Hon. Judith Omange wrote to the former Registrar, Gladys Boss Shollei requesting her to address the issue of shortage of staff in the Industrial Court.17. That in response to paragraph two of the Notice of Amended Notice of Motion application the foregoing correspondence confirms that though the claimants had concluded attachment, they continued being stationed at the Industrial Court on attachment as their employment was never confirmed by the 2nd respondent. At no time were the claimants employed as causals employees as alleged.21. That the respondents have not violated the claimants reasonable expectations for long term employment and the claimants were neither appointed to the Judicial Service Commission nor employed as casuals.23. That the Judicial Service Commission lawfully exercised its mandate in issuing the claimants with notices of termination and release dated 1st May 2014 as they had irregularly continued to work in the Judiciary even after the lapse of their attachment period.

32The respondents in closing entirely rubbish and dismiss all allegations of unlawfulness and visiting of a raw deal onto the claimants and opine and posit that any undoing of the claimants is not their making. Unfortunately or otherwise the respondents did not participate in the hearing of this matter on 16th June, 2014 as scheduled. They, for some undisclosed reasons did not appear at the hearing. The claimants however called two witnessed who testified in favour of their respective cases.

33CW1 – Victor Odundo testified that he knew the respondents in this matter and is related to them by virtue of having worked for them for about eighteen (18) months. He had applied and started as an attachee on 20th September, 2012 and deployed to the Family Registry by a Mr. Orieng – see page 86 – annexure 5 of the claim. His teaching college, the University of Nairobi had by letter indicated the period of service in attachment. He did his three months under a Madam Barasa well. He reported on daily basis for two months but on the third one, this was intermittent as he was allowed time to write his research in time for graduation in December.

34CW1 further testified that he was deployed to the Industrial Court on 30th November, 2012 when they were called to a meeting and three of them selected to undertake this new assignment. The others were Edwin Waithaka and Kenneth Kibiro. They were required to instantly move to the Industrial Court for orientation. By this time they had cleared their attachment. They were joined by a Mr. Wambua and Jane who had been transferred from Makadara Law Courts. The following Monday they met Ms Wasike, Deputy Registrar who took them up together with many others who had been posted to the station.

35The witness also testified that on or about 27th August, 2013 some of them received recommendation letters from the Registrar, Judiciary, commending them for their good services. At this time they were not paid on time and on inquiry they were informed that their services had been terminated – annexure 10. They, however, continued working beyond 27th August, 2013 as Registry/Archives Clerks and others as secretaries. He testified that he had served as clerk for several superior court judges including the Principal Judge, Industrial Court but was not issued with a letter of appointment. This non issuance of letters of appointment applied to all the Claimants.

36The matter of letters of appointment was pursued with Ms Wasike – see page 51 – annexure 2 of the original Statement of Claim dated 30th May, 2014 and also a meeting of 13th January, 2014 where these issues were raised. At this meeting the twin issue of prompt payment of salary was also raised. This meeting involved the Claimants and was also attended by permanent judicial staff. The other issue raised at this meeting was a pay deduction of Ksh.5, 000. 00 which they were informed was tax deduction. He also testified that he was not issued with a payslip and payments were only indicated via internal memo by the Deputy Registrar, Ms. Kimaiyo dated 5th May, 2013 annexed at page 54 of the original Notice of Motion and Claim, all filed on 30th May, 2014.

37CW1 again testified that there was a clocking register at the court registry which he was subjected to and did not go on leave for this entire period. This issue (leave) was raised with Deputy Registrar, who answered that their issues were being looked into and that she did not have authority to grant leave. He testified that he last worked on 31st May, 2014 after notices were issued to them on 26th May, 2014. These are dated 1st May, 2014. They were not awarded any hearing on termination and neither were reasons for termination issued. The Deputy Registrar confessed that she did not have an explanation for this.

38CW1 in to the response by the respondents that indeed there was no intimation of permanent employment for the claimants testified that they attended various training for judiciary staff and this training appeared like absorption to employment in the judiciary. Areas of work were always accessible and they held office keys as appropriate and always received payment for work done.

39CW1 in the penultimate testified that this suit is occasioned by the malicious and unlawful termination of employment by the respondents. He also testifies that the termination was a breach of their constitutional rights to employment. He prays that this court orders relief and payment of unlawful deductions of Ksh.5,000. 00 purportedly as tax. He should have been made permanent after three months of employment. Discrimination arose in that for example the 1st Claimant Agnes was paid Ksh.23, 000. 00 whereas a permanent member of staff in her cadre earned Ksh.97, 000. 00.

40CW2 Edwin Waithaka duly sworn testified that he has sought reinstatement and would work anywhere in the judiciary. He further testified that he was last paid in June, 2014 for services rendered in May, 2014.

41CW2 further testified that there was no hearing or grounds for termination and that the notice of termination was made on 26th May, 2014 four days to its expiry. No reasons were offered for such dalliance and delay in the issue of the notice of termination.

42The witness further testified that there was not disclosure on compliance with the Employment Act. The issue of discriminative pay and delayed payment and also reliance on the Judicial Service Act as a justification for termination is not right. He testified in support of the prayers made and stated that these would be adequate compensation for the claimants.And this marked the close of the claimants case. There being no presentation of the defence case or other interventions we chose to move on.

43The issues for determination therefore are;1Do the claimants have any cause of action against the Chief Registrar, Judiciary – the 1st Respondent?2. Was there an employment relationship inter partes?3. Was the termination of the employment of claimants, if at all, unfair, wrongful and unlawful?4. Are claimants entitled to the relief sought?5. Who bears the costs of this cause?

44Before we delve into the analysis and determination of the issues and therefore the penultimate orders and judgement of Court, let me make a confession to all and sundry. During the pendency of this suit and all the way to the final hearing of the matter on 16th September, 2014 at 1400 hours, I did not study or look at the file at all. I only applied myself to issues raised and presented by counsel to the parties. Thus, I was able to deal and determine the issues and application for recusal of trial judge in total ignorance of the basis of the cases for the parties. This was deliberate, intentional and good for me. It was calculated to salvage a situation where one would develop prejudice and possible bias. This becomes easy when issues are addressed and attended to as they arise, when they arise and are due. So good and so far for the confession. And now therefore we can safely move into the determination of the issues for consideration.

45The first issue for determination is whether the Claimants indeed have a cause of action against the Chief Registrar of the Judiciary – the first Respondent. This issue is contested and disputed by the 1st Respondent in her Replying Affidavit and even response to the Amended Claim. She argues that Article 173(3) of the Constitution of Kenya, 2010 provides for the position of the Chief Registrar, Judiciary. It is thus put in her paragraph 4 of her Replying Affidavit sworn on 1st July 2014. 4.That Article 173 of the Constitution provides that the Chief Registrar of the judiciary is the secretary to the Judicial Service Commission. In exercising my delegated powers, I am not acting on my own behalf but on behalf of the Commission. There is therefore no basis in law to enjoin me in my individual capacity to these proceedings (sic.)

46Her position is that in the exercise of the function of the secretary to the Judicial Service Commission she does not act on her own behalf but that of the Commission and therefore the lack of basis in law to enjoin her in her individual capacity in the suit. This position is further reinforced by the Respondent’s witness statement made by Judith Omange – Registrar of the High Court, who reiterates the same position at paragraph 3 of the witness statement dated 4th July, 2014.

47The Constitution of Kenya 2010 under Article 161 establishes judicial offices and officers. Article 161(1) (c) provides for the office of the Chief Registrar of the Judiciary who shall double as the chief administrator and accounting officer of the judiciary. Article 171(1) (3) of the said constitution follows this by making the Chief Registrar of the Judiciary the secretary of the Judicial Service Commission. This is for obvious reasons. The position of the Chief Registrar of the Judiciary is critical and imperative for the realization of its mandate as constitutionally provided. This officer as so provided takes care of the mainstay of the judiciary and therefore the linkage with the Judicial Service Commission to facilitate ease of co-ordination of judiciary functions. Anything less than this would be an attempt at inadequacy and creating next to impossible situations. It would be futile intoto.

48In response, the Claimants under paragraph 2 of the Reply to the Respondent’s Response submit that the action against the Chief Registrar, Judiciary is apt. This is because of her functions and powers, besides the fact that she has authored and signed the letters of termination. This therefore brings out a case not only for enjoining the 1st Respondent but also holding her culpable of the constitutional breaches of the 2nd respondent. Her office was involved in the employment of the Claimants. This matter to me is clear and well spelt out in the Constitution and the Judicial Service Commission Act where the functions of the office of the Chief Registrar, judiciary are enlisted. I find the submission by the 1st Respondent perturbing, more so when this issue is as clear as day light. I therefore find and hold that the claimants had a straight case against the 1st Respondent and sued her as such. The perception and submission that she was sued in her personal capacity is a misnomer and should be thrashed out without ceremony.

49This finding and position would also be loosely supported by the dictum of Rika J, in the case of Stephen Njoroge Kigochi vs. Dr. Martin Njoroge Wanyoike & Primecare Heart Clinic Ltd, Industrial Court Cause No. 1355 of 2012 where the learned Judge had this to say;17. This court has in past held that it would be difficult for employees to enforce their employment rights, if the court was to give a conservative interpretation to the idea of legal separateness. The doctrine of corporate separateness as popularized in the case of Salomon vs Salomon & Co. Ltd (1897), Ac 22, needs to be cautiously interpreted within modern and employment relationships. As observed in the industrial Court Cause No. 2038 of 2011 between Agnes Ogutu v. Ms Fun An Shop Limited & Manjunath Prabhu, (UR), the doctrine of legal separateness has limitations where contracts of employment are in issue. The court looks at the economic enterprise, the totality of the business structure, rather than the personality assumed by the employer. Employees are recruited by known human persons, [in the present case Dr. Wanyoike] and will hardly know the insulating, multiple legal personalities at the bottom of the employers business. Employee should therefore be given the greatest latitude in bringing all entities described under section 2 above to account for employment wrongs.

50Inasmuch as this finding is basically supported by the provisions of the law and constitution, learned Judge Rika’s dictum becomes relevant and resonates even in the circumstances of this case.

51The second and critical issue for determination is whether there was an employment relationship between the parties. Indeed, this is the central issue and taproot of this cause. That a determination of this issue is basically an analysis of the evidence of the parties is not in dispute. I have done a narrative of this in previous parts of this judgement. The Claimants in their Amended Memorandum of Claim at paragraph 1 posit that they are male and female adults working as Court Clerks or Registry Clerks in the Industrial Court of Kenya and also as secretaries of judges to the Superior Courts. At paragraph 4, they contend that the Claimants engagement in judicial services has been in the clerical, secretarial and support staff in the various divisions of the High Court, Supreme Court of Kenya and the Magistrates’ Court between the months of August, 2012 to November, 2013 at a payment of Kshs.1000. 00 per day being facilitation fee on commencement of employment. Some of them were transferred to the Industrial Court around November, 2012.

52The Claimants also contend that they were bewildered on their first payment which was kshs.450. 00 and exclusive of kshs.50. 00 which they were informed were tax on pay. Subsequently the Claimants were engaged and involved in workshops and trainings at the Sportsman’s ARMS Hotel on 29th November, 2012 and Bontana Hotel on 14th February, 2013. At these trainings, they aver, they were encouraged to develop themselves academically and professionally and therefore chose to undertake further studies.

53The Claimants further contend and submit that the Respondents knowingly caused them to formulate reasonable expectation for long term permanent employment and pensionable service in the circumstances. Their payments were even reviewed from kshs.450. 00 to Kshs.1000. 00 on or about February, 2013 and the same backdated for 21 days all amounting to Kshs.21, 000. 00. All this time the Claimants were referred to variously as casuals, clerks, student clerks, archive clerks and secretaries. Release letters were issued to the Claimants on 30th October, 2013 and this was signed by one, Dismus Obondo, Director Human Resource and Administration. Later they were told to continue working and their dues would be paid. On 28th April, 2014, the Claimants were summoned by the Deputy Registrar, Ms Mwayuli and informed that their services had been terminated and that they should not report back to work on 3rd May, 2014. No formal notices or letters of termination were issued.

54The Claimants also narrate several eventualities and instances which culminate in the issue of a formal letter of termination delivered on 26th May, 2014, the same terminating their employment with effect from 31st May, 2014. This letter is dated 1st May, 2014 and is the bone of contention and mainstay of this suit.

55The Respondents are largely in agreement on the factual basis of this case. They however deny that there was an employment relationship between themselves and the Claimants. They further contend that the termination was lawful and justified in the circumstances. Their position is that the claimants were appointed, or even employed to work in the judiciary and also that no resolution was passed by the Judicial Service Commission regarding their appointments as provided by law. Further, the claimants have not exhibited or produced letters of appointment from the Commission therefore the fallacy of this claim. They pray that the same be dismissed with costs. This is well recited as paragraph 9 in the foregoing part of this judgement.

56This is also repeated by the evidence of Judith Omange vide paragraph 5 of her witness statement afore cited. The Claimants treat this Court to documentary evidence which is largely similar to that of the Respondents. This comprises of letters of recruitment as attachees or interns at no pay and for some like Edwin Waithaka recruitment as Student Clerks and also a deployment letter dated 13th February, 2013. Other documents, particularly coming with the Respondents list of documents largely comprise of letters of offer for attachment, letters of recommendation, letters of release and other documents touching on the staff positions of the Superior Courts and particularly of the Industrial Court of Kenya. The Claimants at the onset bring out the above but also include letters of invitations to the Judiciary Transformation Framework Workshop, evaluation forms, academic qualifications, various internal memos, a copy of minutes of Industrial Court staff meeting held on 13th January, 2014, letter to the Deputy Human Resource officer dated 1st May, 2014. Most of all, the Claimants include and annex the letter of notice of termination dated 1st May, 2014.

57I have scrutinized the documentary evidence by the parties as above cited and also the claimant’s evidence in support of this claim. I also have had occasion to look at the witness statements of Judith Omange and Winfrida Mokaya both senior officers of the judiciary in support of the defence case dated 4th July, 2014 and filed on 7th instant. I do not see or sense a relationship of employment between the parties. The evidence adduced by the parties in this case, including that of the Claimants does not demonstrate a case of employment.

58The relationship between the parties, howsoever described or defined – attachment, clerk, student clerk, secretary, casual, intern, archive clerk et al does not to me amount to a relationship of employment. This is because ordinarily, employment relationships are established by mutuality of agreement inter-parties. This incorporates the agreement of terms and conditions of service. The law, vide section 9 of the Employment Act, 2007 requires that this be in writing whereas section 10 of the Employment Act mandates the employer to reduce this into writing. However, this need not necessary be the case in real life. Courts have inferred, interpreted and discerned employment even in the absence of written contracts of employment.

59The onset of industrial relations is the contract of employment. This must be intended, clear and succinct. That all employment, including casual employment must be originated by an agreement or contract of employment cannot be gainsaid. This lacks and is not demonstrated in the circumstances of this case. It is my observation that the various references to the Claimants as casuals or by any other names were merely diction and does not confer any employment relationship to the parties. It would be fair to all of us to at all times deem the relationship between the parties to this litigation as amorphous. We would not be to blame and neither would we be rightly accused of getting out of our way to mischief.

60The Claimants had time during the pendency of this amorphous relationship to negotiate and come up with agreed terms of operation but did not take up the opportunity for undisclosed reasons. The particulars, form and format of this relationship is therefore elusive, unclear and uncertain. The payment of amounts of up to kshs.1,000. 00 per day as argued, agreed and submitted by the Claimants was not commensurate with the Respondents pay for work at their cadre of employment. They contend that staff on permanent and pensionable terms doing the same jobs and assignments earned far much more than themselves. I may want to conclude that the Claimants accepted discriminative treatment perhaps as an acceptance that this was strictu sensu, not employment. Again, there does not seem to any reference to salary paid but allowances and honorarium. See.

61The law forments various definitions of the terms of employee and employer and other related terminology on the subject. This is displayed under section 2, the interpretation section of the various Acts. The Employment Act, 2007 has the following;employee” means a person employed for wages or salary and includes an apprentice, indentured learner.“employer” means any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any person, and includes an agent, foreman or manager; and an heir, successor, assignee or transferee of that person, pubic body, firm corporation or company.“Casual employee” means a person the terms of whose engagement provide for his payment at the end of each day and who is not engaged on a longer period than twenty four hours at a time.

62The Industrial Training Act, Chapter 237 Laws of Kenya on the other hand brings out the following;employee” means a person employed for wages or salary and includes an apprentice, indentured learner, temporary, seasonal and casual worker.“employer” means any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any person, and includes an agent, foreman or manager; and an heir, successor, assignee or transferee of that person, pubic body, firm corporation or company.“Indentured Learner” means a person, other than an apprentice, who is bound by a written contract to serve an employer for a determined period of not more than two years with a view to acquiring knowledge of a trade in which the employer is reciprocally bound to instruct that person

63The Trade Disputes Act, now repealed, has the following definition of these terms"employee” means, subject to section 3aAny person who has entered into or works under a contract with an employer, whether the contract is for manual labour, clerical work or otherwise, is expressed or implied, is entered into orally or in writing, and whether it is a contract of service or apprenticeship or learnership, or a contract personally to execute any work or labour andbAny person who has entered the employment of or is employed by the Government or any public or local government authority."employer” include the government and any public or local government authority.

64Lastly, the Black’s Law Dictionary 9th edition, at pages 117 and 838 defines the term indenture as follows;1A formal written instrument made by two or more parties with different interests, traditionally having the edges serrated or indented, in a zigzag fashion to reduce the possibility of forgery and to distinguish it from a deed pool – also termed indented deed.2. A deed or elaborate contract signed by two or more parties.ApprenticeA person bound by an indenture to work for an employer for a specified period to learn a craft, trade, or profession…..“ Apprentices, in the strict legal sense, are servants, usually but not necessarily infants who agree to serve their masters with a view to learning some trade or business, and whose masters on their part agree to instruct them. The contract is usually for a term of years and is normally embodied in a deed, in which case the apprentice is said to be bound by an indenture of apprenticeship. It is customary for the father of the apprentice (or some person standing in loco parentis), as well as the apprentice himself to execute the deed or other instrument, and thus become liable for the due observance by the apprentice of his obligations thereunder. When an apprentice deliberately misconducts himself in such a way that, in the case of any other servant, his behavior would amount to repudiation of the agreement, and thereupon the master decides to accept the repudiation ad dismisses him the apprentice’s repudiation is not effective, and the contract is no terminated, unless the Court find that such a course would be for the infant’s benefit. Otherwise the infant could do indirectly what he could not do directly – namely, bring about a rescission of the contract.2. A learner in any field of employment or business, esp. one who learns by hand on experience or technical on-the-job training by one experienced in the field.“Employee” a person who works in the service of any person (the employer) under an express contract of higher, and which the employer has the right to control the details to work performance.“Employer” a person who controls a worker under an express or implied contract of hire and who pays the worker salary or wages.

65The relationship of the Claimants to the Respondents is akin to the definition of an apprentice or even indentured learner. The only fundamental difference, and this is the crux of the matter is that in this relationship there is no semblance of agreements or even written agreement as espoused in these definitions or expectations of the law. It also does not fit into the legal basis of employment or even employer/employee.

66I, in the circumstances find and hold that no employment relationship existed between the parties as this has not been established or demonstrated in evidence. This relationship and available evidence and data does not offer us room for even implying an employment relationship. The relationship can only be defined as amorphous, shapeless, formless and desolate and would in no way amount to employment. Having found out of favour of employment in the circumstances, the third issue for determination abates and flops intoto. We cannot engage in a determination on the nature of employment when this does not exist in the first place.

67The forth issue for determination is whether the Claimants are entitled to the reliefs sought. They are not. However, one notes the nature of this relationship and appreciates that the Claimants as the weaker party fell prey to the all-time raging war between labour and capital. Their contribution to this scenario can hardly be 20%. It is also not in dispute that they made enormous contribution to the labour base and assisted in offsetting the labour deficiency of the Respondents, lack of form notwithstanding. I would therefore find that they are entitled to compensation and award the same. one way or the other.

68This finding is buttressed by the jurisprudence of our good judge and brother Rika, J who in the authority of Njoroge Muigai vs System Intergration Ltd Industrial Court No. 908 of 2011(unreported) where he observed that in employment relationships, courts are not necessarily bound by the rigmarole of the law. A strict application of the law and procedure in employment situations is likely to lead to undesired results due to the essential nature of the engagement. He says;10. In the circumstances of this dispute, the court will not dwell on the legal and factual issues raised by the parties, and seek to make a judicial pronouncement on findings of law and fact, and will not demarcate the rights and obligations of disputants as invited by the parties to do; the court will merely work from where the parties left of and adjust the figures proposed by the parties as their final offers. From the correspondence exchanged by Muigai and Fernanda, it is clear that this was an employment relationship that bordered on a family relationship. Employer and employee interests are frequently diametrically opposed. The parties tend to make no investment in the other, beyond the immediate exchange of a shilling for labour. The dealing is at an arms’ length and the employment relationship ignores the realities of interdependence, intimacy, and mutual investment of work. Long service of employment such as enjoyed by Muigai, engenders are familial bond. It is not preposterous therefore, for employment law to borrow from family law, and encourage the recognition and investment in what relationships the parties have over the years built. The letter of Muigai to Fernanda communicates tight family ties rather than a contractual relationship. Not withstanding Fernanda’s Asian ancestry, Muigai write to her in affectionate Gikuyu language. The field of labour and employment solutions, solutions to disputes do not always call for legal determinations; there are social dimensions. The parties give and take in the subsequent out of court negotiations, does not suggest this dispute is crying out for a legal solution, where one party wins it all. No! In the interest of good family ties and good industrial relations, sometimes the Court is compelled to ignore the strictures of the law.24. The 1st Respondent treated the Claimant as part of the family, entrusting the tag of personal assistant, and paying a monthly stipend of Kshs.20,000. 00, outside the normal remuneration payable to the Claimant as an employee. The courts found in the Industrial Cause No. 8 of 2011 between Njoroge Muigai & System Integration ltd 2013 e-KLR, that it is bound, in interpreting employment disputes to look at the social dimensions rather than engage in plain cold evaluation of the law. This was an employment relationship given the strong Starehe Centre ties bordered on a family relationship.I would not agree any more with my brother’s observations and dictum. Employment relationships have always posed difficult situations for practitioners in industrial relations. This is because employment in the course of time develops into familial and filial relationships that cannot in the event of disputes be disentangled through the strict application of law and process. This may not work. It is an open secret that law and even constitutions have been found incompetent in the accommodation of social order. Gaps and lapses occur and are discernible in life situations which the law has failed to address.

69The last issue of determination touches on the issue of costs. Who bears the costs of this cause? This is a matter of enormous public importance. It touches on public service recruitment systems and expenditure of public funds. It also touches on confusion arising amongst the human resource forces of the Judiciary, a critical arm of government. These are issues that will always require thrashing to ensure proper functions and performance in government. It ultimately touches on openness and accountability in government.

70This cause also comes out as a warning to public bodies and institutions that thrive on this kind of relationship. It is a pointer that these anomalous operations are not sustainable or portenders of good industrial relations. They are basically a stumbler to efficiency and productivity.

71Again, this could be a ripe case of costs not following the event. Why? As earlier observed, the claimants are the weaker party in this relationship. This suit would have been avoided if the parties chose to observe and practice prudent industrial relations. To me, this matter should not have taken this direction in the first place if the parties, and particularly the Respondents were responsive to the need to recognize and impress the familial connotations express in the authorities cited above. What would be so wrong with negotiations with a view to an out of court settlement of the issues in dispute. I belief this was achievable if fair investment of time and other resources was made by the parties. This is the ideal alternative dispute resolution. I, however, decline to take this route on the determination of costs in the circumstances. Based on the nature of this case as above outlined, I find that this is not a case to condemn any party to costs and therefore decline to do the same. In the penultimate, I dismiss this cause with an order that each party bears its own costs.

72Let me close by up lauding parties and their counsel in this cause. The battle was vigorous and worthy it. The parties put their best foot forward and presented their respective cases superbly. I have had occasion and great pleasure in perusing the pleadings, annexures and lists of documents presented by the parties. The authorities cited and presented form and indispensible catalogue of good material in industrial relations. I shall always thank you, good counsels. This was marvelous. Thankyou.

73Earlier on, it was agreed that the Claimants would nevertheless be entitled to an award in return for their participation in the workforce of the Respondents. This conforms to the reasoning of Rika, J in the case of Stephen Njoroge Kigochi vs. Dr. Martin Njoroge Wanyoike and another (Supra.) Courts must now be schooled on the need for adoption of a broad overview of social, economic and other factors in the determination of employment disputes. Blind allegiance and loyalty to the law is not a solution. It has failed us in the past. The position of this court is that the Claimants are entitled to relief and I award the same as follows;(i)Kshs.50,000. 00 being token of appreciation;(ii)Kshs.20,000. 00 being send-off;(iii)That the monetary Awards in (i) and (ii) above shall be payable to each of the Claimants individually;(iv)That the Commissioner for Labour be and is hereby ordered to investigate, verify calibrate, compute and report to this Court on the issue of undue deductions, taxation, NSSF and NHIF deductions, et al and entitlements to the same by the Claimants within sixty (60) days of this award.(v)That the Respondents be and are hereby ordered to settle and pay the Claimant’s dues as ordered within 45 days of this orders of the Court

74The send-off package is intended to maintain the claimant’s kitchens for thirty days as they seek any other economic engagements and ventures.

DELIVERED, DATED AND SIGNED AT THIS 30TH DAY OF SEPTEMBER, 2014D.K. NJAGI MARETE****JUDGEAppearances: