Kenya National Union of Nurses (KNUN) v ECO Bank Kenya Limited, Kenya Commercial Bank Group Limited, Registrar of Trade Unions, Simon Kibii, John K. Biiy, Lucy J. Tanui, Alice Yahuma, Grace Kinyanjui Muthoni & Ali Gabow Abdulahi [2021] KEELRC 1777 (KLR)

Full Case Text

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT

AT NAIROBI

CAUSE 50 OF 2018

(Before Hon. Lady Justice Maureen Onyango)

KENYA NATIONAL UNION OF NURSES (KNUN).................................................CLAIMANT

VERSUS

ECO BANK KENYA LIMITED.......................................................................1ST RESPONDENT

KENYA COMMERCIAL BANK GROUP LIMITED..................................2ND RESPONDENT

THE REGISTRAR OF TRADE UNIONS.......................................................3RD RESPONDENT

MR. SIMON KIBII...........................................................................................4TH RESPONDENT

MR. JOHN K. BIIY..........................................................................................5TH RESPONDENT

MS. LUCY J. TANUI........................................................................................6TH RESPONDENT

MS ALICE YAHUMA.....................................................................................7TH RESPONDENT

MS. GRACE KINYANJUI MUTHONI.........................................................8TH RESPONDENT

MR. ALI GABOW ABDULAHI.....................................................................9TH RESPONDENT

RULING

Before me for determination is an Application dated 27th August 2020. The Applicant seeks orders THAT:

1. Spent.

2. This Court be pleased to issue Judgement in favour of the Claimant and against the 4th to 7th Respondents jointly and

severally for Kshs.9,686,463. 15.

3. This Court be pleased to issue Judgment in favour of the Claimant and against the 8th to 9th Respondents jointly and severally for Kshs.840,000. 00

4. An order against the 4th to 9th Respondents to forthwith surrender to the Claimant Motor Vehicle Registration Number KCL 708T make Toyota which was bought by funds unaccounted for.

5. An order against the 4th to 9th Respondents to account for and return all the proceeds to the Claimant acquired as a result of placing and trading with Motor Vehicle Registration Number KCL 708T make Toyota in the Eldoret Shuttle Sacco or any other Transport Sacco.

6. An order against Eldoret Shuttle Sacco and/or any other concerned or relevant Transport Sacco to produce statement of accounts and surrender to the Claimant all proceeds in its custdy with respect to Motor Vehicle Registration Number KCL 708T Make Toyota.

7. The Officer Commanding Station Central Police Station and/or any other law enforcement agency to ensure compliance with the prayer (4) and that peace prevails.

8. Interest on all the monetary claims from the date of the filing

of the Claim until payment in full.

9. Costs of the application be borne by the 4th to 9th Respondents.

10. Any other relief that this Court may deem fit to grant.

Which Application is based on the grounds as set out on the face of the Notice of Motion Application and in the supporting affidavit of Seth Ambusini Panyako, the General Secretary of the Applicant, sworn on the same date.

The grounds advanced on the face of the application and the supporting affidavit are that arising from the final judgment delivered by this Court on 21st February 2020, this court directed the 4th to 9th Respondents to: -

a) Jointly account for all the funds transacted in respect with Bank Account Number 007XXXXXXXXXXXX, held at Eco Bank's Uasin Gishu Branch being Kshs.9,686,463. 15/- and to refund any monies not properly spent in accordance with the Union's Constitution, and

b) Further directed the 8th to 9th Respondents to jointly account for all the funds transacted in respect with Bank Account Number 11XXXXXXXX held at Kenya Commercial Bank Group Lamu Branch being Kshs.840,000. 00/-.

c) More than six (6) months since the said positive orders were

issued, the Respondents have neither accounted for nor refunded the sums in issue thereby affirming the Claimant's assertion that the monies had been fraudulently obtained and used for private gain.

d) The Respondents have also not filed any application for review or appealed against the said orders therefore have no justifiable reason in not complying with the same by way of refunding the sums in issue.

e) The Respondents application for stay of execution of the orders of court was orally made on 21st February, 2020 but the same was declined by the court since no plausible reason to warrant stay was advanced.

f) In blatant defiance of the court orders of 21st February, 2020, the 4th to 9th Respondents have refused to refund a total sum of Kshs.10,526,463. 15 belonging to the Claimant.

The Claimant/Applicant avers that the sums in issue were not spent in accordance with the Union Constitution since the 4th to 9th Respondents did not have capacity to handle Union money in the impugned manner. He avers that counsel on record for the 4th to 9th Respondents were present during the delivery of judgment on 21st February 2020. That on 11th June, 2020, the Claimant’s counsel wrote to the Respondent’s counsel demanding compliance with the court orders by way of refunding the sums in issue to no avail.

He avers that he is aware that the 4th to 9th Respondents used the proceeds acquired illegally to buy Motor Vehicle Registration Number KCL 708T Make Toyota which they have put in the Eldoret Shuttle Sacco for public transport from Eldoret to Nairobi and vice versa. That the monies and profits acquired from the said business is used by the Respondents for their own selfish private gain and net for the benefit of the Union Members as prescribed by the Union Constitution.

The Application is opposed by way of grounds of opposition with the Respondents stating that it is defective, bad in law, lacking in merit and an abuse of the court process. The application is res judicata and that the court is functus officio having already expressed itself in the final judgement. It also alleges that the Claimant has not come to court with clean hands. The Respondents pray for the dismissal of the Claimant’s Application with costs.

Submissions

The Applicant submitted that it filed the Application with a view to resolve a confusion that had arisen after the orders of this court had not been obeyed by the Respondents. It submitted that despite knowing what the amount of money is, the 4th to 7th Respondents have not made any efforts to comply over a year later as the judgement was not clear. That this application seeks a review and is not appeal.

It submitted that once the amounts payable is clear, the Applicant can demand for payment/enforcement. That once made clear, the Applicant will either file an application for contempt or execute the decree as provided at law. The applicant therefore invites this court to make the requisite ruling in review and order that the 4th to 7th Respondents to jointly and severally pay Kshs.10,526,463. 15 owed or orders issue as prayed in the Application.

The Applicant relied on the Guidelines for Judgement Drafting, by Muthoga J.to the effect that a judgement must be expressed in a language that communicates accurately and clearly, those conclusions and the reasons supporting them. The Applicant further relied on Courts of Saskatchewan, Enforcing Orders where it is stated that in a judgement, the Judge ought to order exactly what is owed and to whom.

The Respondents did not file any submissions.

Analysis and determination

I have carefully considered the application, evidence filed therewith and submissions before me. The issues for determination are:-

1. Whether this court has the jurisdiction to hear this matter.

2. Whether the Application herein is merited.

Whether this court has the jurisdiction to hear this matter.

Before this court looks to determine the prayers sought in this application, the first step is to address whether it possesses the jurisdiction to entertain the matter, which has been raised by the Respondents by way of plea of res judicata and functus officio.

In Peter Lai Muthoka v Standard Group [2017] eKLR; the court held:

“Jurisdiction is everything and without it, a court has no power to make any step. This was stated in the classic case ofThe Owners of the Motor Vessel “Lillian S” Vs Caltex Oil (Kenya) Ltd (1989) KLR 1. where Nyarangi J.A.held as follows:

“I think that it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the court seized of the matter is then obliged to decide the issue right away on the material before it. Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.”

“Where does jurisdiction emanate from? A court's jurisdiction flows from either the Constitution or legislation or both. The Supreme Court of Kenya in the case of Samuel Kamau Machariav KCB & 2 Others, Civil Application No. 2 of 2011stated thus:

“A Court's jurisdiction flows from either the Constitution or Legislation or both. Thus a Court of Law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by Law”

This matter was determined and the judgement delivered on 21st February 2020. For all intents and purposes, the delivery of the judgement renders this court functus officioand the matter is res judicata. The only channel through which this court can “re-open” this matter is vide an application for review of judgement under Rule 33 of Employment and Labour Relations Court (Procedure) Rules which provides the following:

33. Review

(1) A person who is aggrieved by a decree or an order from which an appeal is allowed but from which no appeal is preferred or from which no appeal is allowed, may within reasonable time, apply for a review of the judgment or ruling—

(a) if there is discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the knowledge of that person or could not be produced by that person at the time when the decree was passed or the order made;

(b) on account of some mistake or error apparent on the face of the record;

(d) for any other sufficient reason.”

The Applicant has listed Sections 47(1) of the Labour Relations Act, Section 1A, 1B and 3A of the Civil Procedure Act; Order 51 of the Civil Procedure Rules as the provisions under which the application is brought, none of which make provision for the court to revisit its judgement whether it was for clarification or granting any further orders subsequent to the judgement.

Further, the Court has considered the prayers in the Memorandum of Claim which formed the basis for the judgment delivered by this court on 21st February 2020. In the claim the Applicant sought the following reliefs: -

1. That this Court be pleased to issue an Order of Permanent closure of the Bank Account No. 007XXXXXXXXXXXX in the 1st Respondent’s Eldoret Branch bearing the 4th to 7th Respondents as signatories and transfer all the funds therein to the Claimant’s Gazetted bank Account whose details are:-

Kenya National Union of Nurses

Bank; Barclays Bank of Kenya