Bernard Njeru Kinyua v Kenya Tea Development Agency [2018] KECA 430 (KLR)

IN THE COURT OF APPEAL

AT NYERI

(CORAM: WAKI, SICHALE & KANTAI, JJ.A.)

CIVIL APPLICATION NO. NYR. 96 OF 2017

BETWEEN

BERNARD NJERU KINYUA................................APPLICANT

AND

KENYA TEA DEVELOPMENT AGENCY......RESPONDENT

(Being an application to extend time for lodging application for leave to go to the Supreme Court of Kenya on the judgment of the Kenya Court of Appeal delivered on 28th June, 2017 (G.B.M. Kariuki, Sichale & Kantai, JJ.A.)

in

Civil Appeal No. 56 of 2015)

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RULING OF THE COURT

In a judgment delivered by this Court on 28th June, 2017 we found the appeal by the appellant Bernard Njeru Kinyuato have no merit and we dismissed it.  We set out the history of the matter in full in that judgment.  We found that the appellant had been employed by the respondent, Kenya Tea Development Agency, as a Leaf Clerk where he worked for about 20 years.  His services were terminated.

In the course of his employment he sued one of the respondent’s managers in Embu PMCC No. 42 of 2002 for defamation and he was awarded Kshs. 100,000/= as general damages. He filed another suit being Embu CMCC No. 66 of 2013 against the respondent where he claimed damages for wrongful termination and alleged withheld salaries.  He obtained interlocutory judgment appearance not having been entered by the respondent and after formal proof, the respondent resisted the judgment alleging lack of service of summons upon it.  The application was heard and a trial Court ordered that the ex-parte judgment be set aside and the respondent allowed to defend the suit. At the hearing of that suit the respondent took a preliminary objection alleging that the issues raised in the suit had already been determined.  That objection succeeded and the suit was struck out.

In the cause of those proceedings the appellant had also filed another suit at Embubeing HCCC No. 33 of 2000 against the respondent claiming general damages for wrongful dismissal and payment of arrears of salary.  That suit was heard and dismissed, the court finding that termination of employment was lawful.  An application for leave to appeal that judgment was dismissed.

There was also Embu High Court Civil Appeal No. 29 of 2014 filed by the appellant against the respondent which was an appeal against the orders of the magistrate allowing the respondent to defend Embu CMCC No. 66 of 2013.   The High Court dismissed that appeal.

As we have stated, Civil Appeal No. 56 of 2015 which is the subject of the intended appeal to the Supreme Court was dismissed by this Court on 28th day of June, 2017.

The applicant has now filed a notice of motion said to be brought under Article 22 (1) and (d) (presumably of the Constitution) read with rule 4 of the rules of this Court where he prays that we grant him leave for him to appeal that judgment to the Supreme Court.  He would like the same judgment to be set aside.

In grounds in support of the motion the appellant says that the respondent did not enter appearance in the suit before the subordinate court; that the courts have ignored him and have not given him an oral hearing; that the question of his terminated employment remains unanswered; that the respondent took his money and that we have jurisdiction to entertain the matter.  The affidavit in support and written submissions filed are to the same effect.

We have perused the submissions and the replying affidavit filed by Peter Mwaniki Kiura an Advocate of the High Court of Kenya practicing in the law firm of Riunga Raiji & Company Advocates for the respondent.

By Article 163 (4 (b) of the Constitution of Kenya, 2010 a party may apply to this Court for certification that a matter of general public importance is involved. The certificate will be issued in appropriate cases and the principles governing certification were well captured in two recent cases of this Court.  These are - Greenfields Investments Limited vs Baber Alibhai Mawji, Civil Application No. Sup. 5 of 2012and Koinange Investment and Development Limited vs Robert Nelson Ng’ethe, Civil Application No. Sup 15 of 2012.  In Greenfields  Limited (supra) we stated:

“It would be a perversion of the law as… unambiguously spelt out in the Constitution, were certifications to become fare for ordinary cases no matter how complex, that have for ages been concluded with finality in this Court. This is part of the rationale for the requirements that certification be first sought in this Court”.

In the second case Koinange Investment & Development Limited (supra) we said in respect of the said principle that:

“‘There is a distinction between leave to appeal to this Court from the High Court and from this court to the Supreme Court … the requirement for certification under Article 163 (4) (b) is a genuine filtering process to ensure that only appeals with elements of general public importance reach the Supreme Court, as the role of the Supreme Court, as was observed in R vs Secretary of State ex parte Eastway [2001] 1All ER 27 at p. 33 para (b) – per Lord Binghan, cannot be relegated to deal with correction of errors in the application of settled law, even where  such are shown to exist. This point was expounded by the Supreme Court itself in Peter Odour Ngoge vs Hon Francis ole Kaparo & 5 Others, Supreme Court Petition No. 2 of 2012…”.

Looking at the motion before us and the submissions made there is no issue of general public importance that can entitle the applicant to be granted leave to appeal to the Supreme Court. The dispute that he had with the respondent concerned an issue where he sued for defamation and was awarded general damages.  His further attempts to get further awards by filing a multiplicity of cases have not been successful. He has been in litigation for a long time as we observed in Civil Appeal No. 56 of 2015.  He has refused to accept that although he had been successful in formally proving the suit before the magistrate, the ex-parte judgment was set aside and the respondent was allowed to defend the suit.  When the suit came for hearing, a preliminary objection was taken to the effect that the issues raised in the suit had been determined in the defamation case where the applicant was awarded damages.  The issues that involved the applicant and the respondent were issues of a private nature and we so find.

The applicant would be well advised to stop the multiplicity of cases and call it a day.  He has been in the court system for too long.  This clogs the system and obviously prejudices the respondent which time and again has to defend the matters that are filed all of which have failed save the defamation case.  The applicant was awarded damages and he should have been happy to walk away with the cheque. He was not entitled to anything more – this the courts have firmly pronounced.

The application fails and we dismiss it. We award costs of the same to the respondent.

Dated and delivered at Nyeri this 25th day of July, 2018.

P. N. WAKI

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JUDGE OF APPEAL

F. SICHALE

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JUDGE OF APPEAL

S. ole KANTAI

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JUDGE OF APPEAL

I certify that this is atrue copy of the original.

DEPUTY REGISTRAR