[2017] KEHC 3949 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KISII

CIVIL APPEAL NO. 67 OF 2011

YUNES MORAA GICHANA.............................................APPELLANT

VERSUS

WAKENYA PAMOJA SACCO SOCIETY LTD....1ST RESPONDENT

CO-PERATIVE BANK OF KENYA LTD...............2ND RESPONDENT

(Being an appeal from the decision and judgment of Resident Magistrate Njeri Thuku dated 10th March 2011 in the original KISII CMCC NO. 44 OF 2010).

JUDGMENT

1. The appellant herein, YUNES MORAA GICHANA who was the plaintiff before the trial court, sued the respondents in Kisii CMCC 44 of 2010 seeking the following orders:

a) Damages.

b) Full, accurate and true accounts of the retirement benefits in accordance with the collective bargaining agreement

c) Costs of the suit.

d) Interest

2. The appellant’s case before the lower court was that on 30th January 2002, she opted to retire from employment due to her ill health on the advice of the 1st respondent and that at the time of her retirement, she was entitled to retirement benefits from the said 1st respondent in line with their collective bargaining agreement. She added that through a letter dated 8th September 2009 written by the Retirement Benefits Authority, the 2nd Respondent stated that it had drawn two cheques Nos. 000098 and 000223 for the sum of Kshs. 19,086. 35 and 19,902. 60 respectively but which sums of money the appellant did not receive. The appellant therefore claimed the total sum of Kshs. 210,762. 95 together with interest at 18% per annum from March 2002 until payment in full.

3. In its defence dated 17th September 2010, the 1st respondent acknowledged that the appellant opted to retire from its employment on 30th January 2002 due to ill health but denied that she was entitled to any retirement benefits. The 1st respondent added that the stated sum of Kshs. 210,762. 95 had already been paid to the appellant.

4. The 2nd respondent also filed its defence on 7th June 2010 wherein it denied any involvement in any collective bargaining agreement with the appellant or any of the parties to the suit. It further denied having drawn any cheques for the specified amounts and stated that the appellant’s suit was defective. The 2nd respondent indicated that it would raise a preliminary objection to the suit at the hearing hereof.

5. When the case came up for hearing before the trial court on 22nd February 2011, Mr. Mariga for 1st respondent raised a preliminary objection to the suit while arguing that the court lacked jurisdiction to entertain the case in view of the fact that it related to terminal dues which under Section 87 (2) of the Employment fell under the jurisdiction of the Industrial Court.

6. The 1st respondent also contended that it was a cooperative society in which the appellant was a member and in line with the provisions of Section 76 (1) of the Cooperative Societies Act, the dispute ought to have been referred to the Cooperative Tribunal.

7. The appellant opposed the preliminary objection while arguing that the Employment Act, which came into force in 2008, could not be applied in the case retrospectively and further that the appellant was an employee and not a member of the 1st respondent and therefore the Cooperative Societies Act was not applicable in the case.

8. Upon considering the preliminary objection, the trial court held that the Cooperatives Societies Act was not applicable in the case because the appellant had filed the suit as an employee of the 1st respondent and not a member of the society. The trial court however upheld the preliminary objection on the jurisdiction of the court to entertain the case and stated that Section 87 (2) of the Employment Act was clear that only the Industrial Court could determine a complaint arising out of a contract of service. The trial court struck off the appellant’s suit while observing that the case was filed in 2010 after the enactment of the Employment Act and therefore, the Act could not be said applying retrospectively.

9. It is said ruling striking out the appellant’s case before the lower court that has now given rise to the instant appeal by the appellant wherein she challenged the trial court’s ruling on the following grounds in her Memorandum of Appeal.

1. The Learned Magistrate erred in law in not appreciating that the plaintiff’s claim was for damages and an account and not wages.

2. The Learned Magistrate erred in law by failing to appreciate that the main issues in that suit was damages and an account and that those matters were secondary to the main issues in Section 87 (1) of the Employment Act which is the contract of service.

3. The Learned Magistrate erred in not holding that Section 87 of the Employment Act did not apply because the matter in dispute was secondary to a dispute over a contract of service.

4. That the Learned Magistrate failed to appreciate that a claim for an account is an equitable remedy which was created by the courts of equity and the court had the jurisdiction to hear and determine that issue.

5. That the Learned Trial Magistrate failed to appreciate that the plaintiff’s claim was not for wages but for money received and held for and on behalf of the appellant secondary to the employment contract.

6. That the Learned Magistrate failed to appreciate that the Industrial Court’s jurisdiction was limited to the main issue in a contract of service and not secondary matters.

10. When the appeal came up for before me on 17th October 2016, parties agreed to canvass it by way of written submissions which they subsequently filed and which I have perused. In summary, while the appellant argued that the trial court had jurisdiction to hear and determine the case under Section 87 (3) of the Employment Act 2007, the respondents reiterated that the applicable Section was Section 87 (1) and (2) of the Employment Act which is clear that only the Industrial Court has jurisdiction to adjudicate over the matter.

11. Upon considering the record of appeal and the submissions of the parties, I note that the main issue for determination is whether the trial court was justified in holding that it lacked jurisdiction to entertain the case.

12. Section 87 of the Employment Act, which the trial court relied on in striking out the appellant’s case stipulates as follows:

“87. Complaint and jurisdiction in cases of dispute between employers and employees

(1) Subject to the provisions of this Act whenever— (a) an employer or employee neglects or refuses to fulfil a contract of service; or (b) any question, difference or dispute arises as to the rights or liabilities of either party; or (c) touching any misconduct, neglect or ill-treatment of either party or any injury to the person or property of either party, under any contract of service, the aggrieved party may complain to the labour officer or lodge a complaint or suit in the Industrial Court.

(2) No court other than the Industrial Court shall determine any complaint or suit referred to in subsection (1).

(3) This section shall not apply in a suit where the dispute over a contract of service or any other matter referred to in subsection (1) is similar or secondary to the main issue in dispute.”

13. I note that the appellant’s claim before the trial court as shown at paragraph 5 of the plaint was for the payment of retirement benefits as stipulated in the collective bargaining agreement. In fact, the appellant was specific on the amount claimed as her benefits which she stated was Kshs. 210,762. 95. To my mind therefore, I find that the appellant’s claim related to her right under a contract of service and was not secondary to the main issue in dispute. I find that the trial court was under those circumstances justified in upholding the preliminary objection on the jurisdiction of the court.

14. Having found that the trial court made the right decision in holding that it had no jurisdiction in the case, I find that the courts have in the recent past, following the promulgation of the new constitution, held a finding that a case was filed in the wrong court for want of jurisdiction, which belongs to another court, does not automatically result in the dismissal of such a case. The approach adopted by the courts has been to simply refer the case to the right court for determination. As was held in the case of Prof. Daniel N. Mugendi vs Kenyatta University, Benson I. Wairegi, Eliud Mathiu & Prof Olive Mugenda, CA No. 6. Of 2012 at page 11.

15. Article 159 2 (d) of the Constitutionadvocates for the administration of justice without undue regard to procedural technicalities. Even though the issue of jurisdiction goes to the foundation of the case and cannot be said to be a matter of procedural technicality, as I have already stated hereinabove, courts have adopted the approach of referring cases filed before the wrong forums to the right court in order to save on time and to ease the burden for parties who for one reason or another find themselves before the wrong courts. My view is that striking out a case, at a preliminary stage, for want of jurisdiction does not entirely resolve the issues between the parties, but can have the undesirable consequence of only changing the course of the case as the same case may resurface in another form or at another forum.

16. Having regard to the above observations, the order that commends itself to me is the order to allow the appeal, partly, and direct that the case be referred to the employment and Labour Relations Court at Kisumu for hearing and determination.

17. The costs of this appeal shall abide the outcome of the main case to be heard before the Industrial Court.

Dated, signed and delivered in open court this 19th day of July, 2017

HON. W. A. OKWANY

JUDGE

In the presence of:

-Bosire G for the Appellant

-Bosire N for the 2nd Respondent

-Omwoyo court clerk