Mwangi & 12 others v National Bank of Kenya Ltd & others [2022] KEHC 16177 (KLR)

Mwangi & 12 others v National Bank of Kenya Ltd & others (Civil Case 390 of 2013) [2022] KEHC 16177 (KLR) (Civ) (11 November 2022) (Ruling)

Neutral citation: [2022] KEHC 16177 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Case 390 of 2013

JK Sergon, J

November 11, 2022

Between

Paul Churu Mwangi & 12 others

Plaintiff

and

National Bank of Kenya Ltd & others

Defendant

Ruling

1. The defendants/applicants herein took out the motion dated 26th November 2018 whereof they sought for the following orders:-i.That the plaintiffs plaint dated 28th June, 2010 be struck out.ii.That the costs of this application and the suit be awarded to the defendants.

2. The defendants filed the affidavit sworn by Samuel Mundia in support of the motion. The plaintiffs filed the replying affidavit sworn by Paul Churu Mwangi to oppose the motion.

3. I have considered the grounds stated on the motion and the facts deponed in the rival affidavits. I have also taken into account the written submissions.

4. It is the submission of the defendants that the plaintiffs’ claim is for pension benefits hence this court lacks the original jurisdiction under the Retirement Benefit Act to hear and determine the same.

5. The defendants further stated that the proper forum to determine such disputes is the Retirement Benefits Authority and this court can only entertain the dispute as an appeal arising from the decision of the Authority. This court was urged to find and hold that the suit is an abuse of the court process and proceed to strike it out the plaint.

6. Another argument which the defendants submitted is that since the plaintiffs have separate and distinct contracts with the 1st defendant’s Fund, their causes of action should likewise be separate and distinct in nature. This court was beseeched to find and hold that the plaintiffs’ suit is bad in law for being a misjoinder and ought to be struck out.

7. The plaintiffs on the other hand have opposed the defendants’ motion arguing that the application is made in bad faith since the defendants are aware that they participated in the proceedings at the Retirement Benefits Authority and Retirement Benefits Appeals Tribunal no. 8 of 2010.

8. They also pointed out that the defendants through their various advocates have previously raised the issue touching on this court’s original jurisdiction to hear and determine disputes arising from pension claims or benefits.

9. Having considered the material placed before this court plus the rival submissions, I have come to the following conclusions in the matter: First, is that on 3rd July 2015, this court delivered a ruling in this matter in respect of the motion dated 30th January, 2014 in which the court expressed itself inter alia as follows:“.... this dispute is all about the calculations of retirement benefits. Though the question of retirement benefits arise from the contract of employment, the dispute cannot fall within the ambit of the Industrial and Labour Relations Court. This court is therefore seised of jurisdiction to hear and determine the dispute.”

10. It is clear that this court put to rest the issue on jurisdiction and there is no evidence that an appeal was preferred to challenge this court’s aforesaid ruling. Secondly, I am also persuaded by the arguments put forward by the plaintiffs that the issue to be determined in this suit is not limited only to calculations of retirement benefits for which the Retirement Benefits Authority has complimentary jurisdiction on as there are other issues like special damages, general damages, injunction and declaration among other reliefs as pleaded in the plaint dated 28th June 2010.

11. The defendants have urged this court to strike out the plaintiffs’ suit for being a misjoinder. With respect, the suit cannot be defeated for being a misjoinder. The issues though they appear distinct can be determined together in a single suit. The dominant issues are those which can competently be entertained by this court.

12. In the end, I find no merit in the defendants’ motion dated 26th November, 2018. The same is dismissed with each party bearing their own costs.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 11TH DAY OF NOVEMBER, 2022. J. K. SERGONJUDGEIn the presence of:.................... for the Plaintiffs/Respondents.................... for the Defendants/Applicants