Jackson Kimani Waweru, Daniel Kagori Njuguna, Mary Wairimu Mwaniki (On Behalf of Benjamin Cheserek Chemengich – Deceased), David Karimi Marete, Patrick Gakobo Mathenge & Hassan Godana Bagaja v Attorney General, Commissioner of Police, Shadrack Mulanga & Municipal Council of Naivasha [2014] KEELRC 1115 (KLR)

REPUBLIC OF KENYA

IN THE INDUSTRIAL COURT OF KENYA AT NAKURU

MISCELLANEOUS APPLICATION NO. 8 OF 2014

JACKSON KIMANI WAWERU................................................................................................................................1ST APPLICANT

DANIEL KAGORI NJUGUNA..................................................................................................................................2ND APPLICANT

MARY WAIRIMU MWANIKI (ON BEHALF OF BENJAMIN CHESEREK CHEMENGICH – DECEASED)........3RD APPLICANT

DAVID KARIMI MARETE.........................................................................................................................................4TH APPLICANT

PATRICK GAKOBO MATHENGE............................................................................................................................5TH APPLICANT

HASSAN GODANA BAGAJA.................................................................................................................................6TH APPLICANT

- VERSUS -

ATTORNEY GENERAL OF KENYA....................................................................................................................1ST RESPONDENT

COMMISSIONER OF POLICE..........................................................................................................................2ND RESPONDENT

SHADRACK MULANGA....................................................................................................................................3RD RESPONDENT

MUNICIPAL COUNCIL OF NAIVASHA.............................................................................................................4TH RESPONDENT

(Before Hon. Justice Byram Ongaya on Friday 4th July, 2014)

RULING

The applicants filed an application on 16. 04. 2014 through Katunga Mbuvi & Company Advocates.  The application was brought under Article 162(2) (a) of the Constitution, sections 4(1) and 12(1) of the Industrial Court Act and all enabling laws.  The prayers are that Civil Suit No. 1001 of 2009 in the Chief Magistrate’s Court at Naivasha be transferred to this court for hearing and determination because this court has jurisdiction and the court in Naivasha in which the suit is filed lacks jurisdiction to hear and determine the suit.

The plaint in the pending suit makes prayers for judgment against the respondents in favour of the applicants for:

Order directing the 3rd defendant on behalf of the 4th defendant to lift the suspension and reinstate them with all their benefits and unpaid salary from 12. 01. 2009 to-date.

Damages for false detention and malicious prosecution in Criminal Case No. 83 of 2009 at Naivasha.

Damages for the tort of defamation.

Costs of this suit and interest.

Any other relief the honourable court may deem fit to grant.

The 4th respondent opposed the application by filing on 16. 05. 2014, the replying affidavit of J. M. Motari through Rodi, Orege Advocates.  The 4th respondent’s case is that the suit in the Chief Magistrate’s Court is founded on claims of defamation and malicious prosecution.  The further opposition is that on 21. 11. 2013, the Magistrate’s Court ruled that it lacked jurisdiction to hear the case and the suit thereby stood dismissed and there was no suit for transfer to this court in such circumstances.  Further, the 2nd and 4th respondents have ceased to exist and without necessary amendments and 3rd respondent having been wrongly sued as an individual, the suit was incompetent.

The court has considered the submissions and the parties’ respective positions and makes findings as follows:

No order dismissing the suit has been exhibited and the court finds that there is a pending suit that is capable of transfer if found appropriate to do so.

The issues relating to amendment of pleadings are matters that will best be ventilated if the suit is transferred, after such transfer.

The finding in the lower court that the court lacks jurisdiction as submitted to oppose the transfer has the effect that if the transfer is disallowed, the applicants will be prejudiced as their access to fair and expeditious determination of the suit will be defeated.

The respondents submit that the suit seeks reinstatement which the court is not allowed to make under section 12(3) of the Industrial Court Act, 2011, where three years have lapsed.  First, the submission acknowledges that the suit is about or related to employment but the relief sought is not available.  Such, in the opinion of the court is a submission to be made in opposition to the suit.  Secondly, the court finds that the suit makes a prayer for lifting a suspension and not about reinstatement.

Taking all the submissions and the circumstances of the application into account, the court finds that it will meet the ends of justice if the suit is transferred to this court for hearing and determination.

In conclusion, the application is allowed with orders that:

Civil Suit No. 1001 of 2009 in the Chief Magistrate’s Court at Naivasha is transferred to this court at Nakuru for hearing and determination.

The applicants will take steps towards transfer of the court file as ordered.

Upon the transfer of the suit file, the Deputy Registrar to fix the suit for mention before this court on a date notified to all parties for directions.

The costs of the application to abide the outcome of the suit.

Signed, datedanddeliveredin court atNakuruthisFriday 4th July, 2014.

BYRAM ONGAYA

JUDGE