Abungaana Khahuu Khasiani v Barclays Bank of Kenya Ltd & Reli Co-operative Savings and Credit Society Ltd [2016] KEHC 5373 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CIVIL CASE NO.  949 OF 2003

ABUNGAANA KHAHUU KHASIANI ……………………….....................…....PLAINTIFF

VERSUS

BARCLAYS BANK OF KENYA LTD……………...................………....1ST DEFENDANT

RELI CO-OPERATIVE SAVINGS AND CREDIT SOCIETY LTD…....2ND DEFENDANT

RULING

This is a fairly old suit instituted on 11th September 2003.  It is now 12. 5 years since its institution in this court and it remains unheard for one reason or another.  Nonetheless, it now appears that the plaintiff is ready to have the matter heard and determined by complying with the provisions of Order 11 of the Civil Procedure Rules on pre-trial requirements.  However, my perusal of plaint  dated  11th September 2003 shows that the plaintiff’s claim against  the  defendants is  for general damages  for defamation and  or malicious  and negligent misrepresentation as  well as general  damages  for breach of contract  and benefits  of the reminder of  the employment contract period.  The subject contract is a contract of employment which the plaintiff alleges was breached when he was wrongfully and unlawfully dismissed from his employment.

The  above being  the case, then it is my humble view that this court is devoid  of jurisdiction to hear and determine the dispute which substantially relates to  Employment and Labour Relations. Such disputes can only be heard and determined by Employment and Labour Relations Court established under Section 4 of the Employment and Labour Relations Act, as contemplated in Article 162(2) (a) of the Constitution.

Furthermore, Article 165(5) (b)  of the Constitution  expressly ousts the  jurisdiction  of this court from  hearing and determining  disputes  reserved for courts  contemplated  in Article  162(2)  of the Constitution.

Albeit  this suit  was  instituted  before the effective  date of  the Constitution on 27th August  2010 and therefore  the  transitional  and consequential provisions of  part 5  Section  22 of  the Constitution on administration of justice would be applicable, nonetheless, this matter is not  part heard  and therefore this  court would not ‘continue’ to hear it.

In the premises, and for want  of jurisdiction and as  Section  12(1) of the Employment and Labour Relations Act clearly  vests the jurisdiction  both original  and appellate jurisdiction in the Employment and Labour Relations Court  to hear and determine  such disputes  as contemplated  in Article   162(2) (a) of the Constitution, I have no option  at this stage but  to down my tools  as commanded by Article 165(5)(b) of the Constitution and direct that  this file  be and is hereby placed before the Employment and Labour Relations Court at Nairobi for directions and further consideration  as to its disposal.

Orders accordingly.

R.E. ABURILI

JUDGE

19. 4.2016