Fredrick Chebuyi & others v Frodack Services & Butali Sugar Mills [2022] KEELRC 270 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT

AT BUNGOMA

ELR CAUSE NO. 49 OF 2021

(FORMERLY KSM E019 OF 2021)

FREDRICK CHEBUYI & OTHERS.................................................................CLAIMANTS

VERSUS

FRODACK SERVICES............................................................................1ST RESPODNENT

BUTALI SUGAR MILLS.........................................................................2ND RESPONDENT

R U  L I N G

1. The Claimants by statement of Claim dated  9th December 2021 sought the following reliefs:-

a. A declaration  that the Claimant’s  services were procedurally, unlawfully and unfairly terminated and in the circumstance the Claimant is entitled to compensation of his terminal dues as outlined in the claim.

b. The terminal dues as calculated and annexed herewith as“ SCHEDULED  a”  as stipulated under paragraph 29  of the Claim .

c. Certificate of service

d. Cost of this suit  and interest at court rates from time of filing suit until payment in full and

e. Any other further and better relief the Honourable court may deem just and fit to grant.

2. The Respondents filed response  and Notices of Preliminary Objection . This ruling is on the Notices of Preliminary Objection.

3. The 2nd Respondent Notice of Preliminary objection dated 31st March  2021  states that the suit is incompetent and defective for reasons that:-

a. The suit is statutory time barred and therefore this Honourable court lacks jurisdiction to hear and determine the matter and relies  on Section 90 of the Employment Act No. 11 of 2007 .

4. The 1st Respondent’s Notice of Preliminary Objection is dated  6th August  2021  and seeks  to have the suit struck out on the following grounds.

a. The cause of action in this suit arose on the 2nd May, 2017  as a result of contracts of service  between the Respodnents and the Claimants  as such compensation for damages ought  to have been guided by the provisions  of the Employment  Act No. 11 of 2007.

b. Pursuant to Section 90 of the Employment Act  No. 11 of 2007, this suit is time barred and therefore offends the mandatory provisions of the Employment Act  2007.

c. The  suit falls short  of the doctrine of “Res-subjudice”.  Under  Section 6 of the Civil Procedure Act  as there other suits on the same subject matter in other courts and between the same parties pending determination under Eldoret  E&LR  Cause No. 109 of  2018,  Eldoret E&LR Cause No. 116 OF 2018,  Eldoret E&LR Cause NO. 4/2018 ( also similar to Kakamega  210/2019) Kakamega   CMCC   E&LR  Cause No. 145/2020,  Kakamega   CMCC  NO.  E&LR  Cause No. 64/2020  Kakamega   CMCC E&LR NO. 78 /2020,  Eldoret   E& LR No. 104 of 2018, Eldoret ELR NO. 105/2018  Eldoret  E&LR CAUSE NO. 113/2018, Kakamega CMCC NO. 154/2020, Eldoret E&LR CAUSE NO. 40/2018  & KAKAMEGA CMCC E&LR CAUSE NO. 205/2019.

d. The suit is an abuse of the court process.

e. The suit is incompetent and ought  to be struck out with costs   to the Respondent.

5. The two  notices of Preliminary Objection are canvassed by way of written submissions. The 2nd Respondents  written submissions in support of Notice of Preliminary Objection dated 31st March 2021  and 6th August  2021  are dated 8th February  2022  drawn by L.G  Menezes  & Company Advocates and filed in court on the 11th February  2022.  The  1st  Respondent’s  written submissions to the 2 Notices of Preliminary  Objection are dated 18th February  2022  drawn by Okong’o  Wandago & Company Advocates and filed in court on 14th February  2022. The Claimant’s  written  submissions in opposition to the 2nd Respondent’s  Preliminary Objection dated 31st March 2021  dated  17th February   2022  are drawn by  V A  Shibanda & Company Advocates  and filed on the 7th March 2022.

6. The court considers the following  as issues  for determination in the ruling on the Notice of Preliminary  Objection by 1st Respondent dated 6th August  2021  and  the Notice of Preliminary Objection by 2nd Respondent dated 31st March, 2021:-

a. Whether the suit dated 9th December, 2022 is statutory time barred.

b. Whether the suit offends the doctrine of “res- subjudice under Section 6 of the Civil Procedure  Act.

c. Costs of the suit.

a. Whether the suit dated 9th December  2020 is statutory time barred.

7. The Claimant in paragraph  9 of the Claim states that on the 4th May, 2017  together with other workers of the Respondents  they  went back to the offices of the Respondents  and found the gate had been locked with police on standby.

8. In paragraph 11 of the Claimant it is stated that the Claimants made inquiries as to what was happening and they were informed by the  Supervisors of both the 1st and 2nd Respondents  that there was no work and that they should vacate the Respondent’s office immediately.

9. In paragraph 13 of the Claim it is stated that the workers who included the Claimant’s  herein were teargassed and chased away by the police hence termination of the Claimant’s herein.

10. The Claimants were terminated on 4th May  2017  as per  the contents of the  suit .

11. The 1st Respondent states that the cause of action arose on 2nd May, 2017.  This was the day the Claimants state they made demands concerning conditions of work vide strike the 2nd Respondent in paragraph 36 (u) of its defence statement states it dismissed all the Claimants  vide notice dated  3rd May, 2017  ( 2nd  Respondents’  document 11) pursuant to letter dated 3rd May, 2017 by County Labour  Officer in charge Kakamega  County  concluding the  strike  was illegal   ( 2nd respondent’s document No. 10)

12. Based on the above documentary evidence by 2nd Respondent, the court concludes that the Claimant’s were terminated from service of the Respondents on 3rd May, 2017 and time for purposes of filing suit started on the 4th May 2017.

13. The Respondents  rely on the Provisions of Section 90 of the Employment Act which states as follows:-

“ Withstanding    the provisions of Section 4 (10  of the Limitation of Actions  Act ( Cap  22 ) No  Civil Action or proceedings   based or arising out of Act, or a contract of service in general  shall lie or be instituted  unless it is commenced within three year next after the act, neglect or default complained or in the case of continuing  injury or damage within twelve months next after the cessation thereof”’.

14. The Respondents submit the provision is mandatory and there was no application to extend time before filing of instant suit hence the suit is statutory time barred.

15. The 2nd Respondent to buttress its submissions relies on the decision of my brother Justice Abuodha in Ernest Kibande Alugaya  -vs  Pearly Developers Ltd.  Nairobi  ELRC NO.  1354 of 2014  where the Judge held that the working of the Section ( 90 of Employment Act is couched  in mandatory terms and does not seem to give room for extension of the time once it has lapsed.

16. Consequently the Respondents’  submit the suit is bad in law and ought  to be struck out  for being statutory time barred.

17. The Claimant  on the other hand admits the termination of the Claimant’s   employment was on or about 4th May  2017.  The court has already found the notice of dismissal  is dated 3rd  May, 2017.

18. The Claimants’ submissions that there was a ruling in Butali  SPMCC CAUSE NO. 4/ 2018  where the Magistrate made a ruling   directing the suit be filed in the High Court.  The said  ruling is not attached to the submissions.  The court finds that submissions are not pleadings and hence the said submission is misplaced.  Further the court cannot be bound by directions of a magistrate and most important if the said directions are contrary to section 90 of the Employment Act.

19. The Claimant submits that authorities relied on by the Respondents  relates to fresh suits.  The instant suit is afresh suit . The court having perused the statement of claim did not find any pleading that the instant suit is not a fresh suit.  Parties  are bound by their pleadings and the court  reiterates  that submissions are not pleadings.

20. The court finds that, the Claimants’ having been dismissed from Employment vide notice dated 3rd May, 2017, the Claim filed on the 2nd March, 2021  was outside  3 years and hence statutory time barred pursuant to Section 90 of the Employment  Act. The court upholds the position by Justice Abuodha (supra) that Section 90 of the Employment Act is couched in mandatory terms  and adds that the court has no authority to extend  time under said provision.

21. The objection by the  Respondents to that effect is upheld.

(b) whether the suit offends the doctrine of Res-subjudice under Section 6 of the Civil Procedure Act.

22. Section 6 of the Civil Procedure Act provides   as follows:-

“ No court shall proceed   with the trial of any suit or proceedings in which the matter in issue is also directly and substantially in issue in a previously instated suit or proceedings between the same parties  under whom they or any of them claims.  Litigating under the same title where such suit or proce4edings is pending in the same or other court having jurisdiction in Kenya to grant the relief claimed”.

23. The 1st Respondent outlined the cases file din other courts by some of the Claimants and annexed the filed pleadings.

24. The Claimant in response submits that the claims were erroneously added to the list of Claimants herein and the Respective Claimants  have since withdrawn their case against the Respondents  herein.  The Claimants Counsel refers to Notice of Withdrawal dated 16th February 2022 and filed in court on the 7th March 2022.  It is apparent the notice if filed in response to the Notice of preliminary objection by 1st Respondents   filed on 19th  August 2021.  There   has been no amendment  of the instant suit to reflect the said Notice of withdraw which also  does not reflect  all existing suits in other courts.

25. That  ground of the notice  of objection  thus remains valid and is upheld.

26. Consequently, the court having found that the suit is statutory  time barred and some the claimants offend the provisions of  Section  6  of the Civil procedure Act upholds the notices of preliminary  objection by  the Respondents dated  6th August, 2021 and 31st March, 2021  respectively  and strikes  out the claim dated  9th December  2020 of being statutory time barred and for offending the provisions of Section 6 of the Civil procedure Act ( Cap 21)  with costs  to the Respondents.

It is so ordered.

DATED, SIGNED AND DELIVRED  AT BUNGOMA THIS 21ST DAY OF APRIL, 2022

J. W KELI,

JUDGE.

In the Presence of :-

Court Assistant :  Brenda  Wesonga

Claimant:-

Respondent:-