Reuben Ngila Kitonyi v Governor Central Bank of Kenya [2018] KEHC 8017 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

JUDICIAL REVIEW NO.  501 OF 2016

IN THE MATER OF AN APPLICATION BY REUBEN

NGILA KITONYI FOR AN ORDER OF MANDAMUS

AND

IN THE MATTER OF THE GOVERNOR, CENTRAL BANK

OF KENYA, AS GIVEN IN CAP 491, LAWS OF KENYA

REUBEN NGILA KITONYI..............................................APPLICANT

VERSUS

THE GOVERNOR CENTRAL BANK OF KENYA.....RESPONDENT

JUDGMENT

1. On 18th October 2016, the exparte applicant Reuben Ngila Kitonyi filed an application for leave to institute Judicial Review proceedings to apply for an order of mandamus directed to the  Governor, Central Bank of Kenya  who is the  respondent in this  case, to give to the applicant  certified  copies of the proceedings  leading to his termination of  services  from the Central Bank of Kenya or if there were no proceedings which led to his  discharge  from his office at the Central Bank of Kenya, then he be restored without loss of  benefits, and costs to be in the cause.

2. The main ground upon which the application is predicated is that   the main issue is that once charged with a crime, in which the respondent was the complainant, any invocation of it may have been discreetly used to deny the applicant the rules of natural justice (Audi Alteram Partem) before discharge.

3. The applicant was granted  leave  of court to  file the substantive  notice of motion for the said Judicial Review order of mandamus  and  on 28th November  2016   the  applicant  filed a notice  of motion dated  14th November  2016  as per the  leave granted  on  14th November  2017.

4. The application is predicated on the statutory statement and affidavit of Reuben Ngila Kitonyi, sworn on 18th October, 2016   and annextures thereto.

5. The exparte applicant’s case as can be deduced from his statutory statement  and  affidavit is that he was an  employee  of the  respondent  Central Bank of Kenya until  26th September  1996  when he  was  removed from office  with a termination under unclear circumstances.  He however attributes termination from employment to the criminal case No. 281/1996 in which the respondent Central Bank of Kenya was the complainant.

6. He  then filed JR No. 390/2016  which  was  meant  to clear  the  criminal case above  but that  the said  criminal case delayed  in court due to the Director of Public Prosecution failure to proceed  and so it was terminated without the knowledge of the applicant.

7. The applicant claims that all along, he had asked the respondent Central Bank of Kenya to supply him with the documents /proceedings which formed the basis for his termination from his employment but that the respondent had remained adamant.

8. He claims that no charges were served upon him prior to termination of his services hence the Central Bank of Kenya breached Rules of Natural Justice.  That at the time of his termination, he was waiting for conclusion of his criminal case which   was nonetheless terminated by the Director of Public Prosecution without consulting him.

9. That despite several requests to Central Bank of Kenya to furnish  him with  reasons  for his  termination, Central Bank of Kenya has not  respondent  hence these  proceedings  which also seek for his for his  reinstatement  because the criminal case   was terminated  under section 87(a) of the criminal  Procedure   Code  and that  prior to his termination, he  was  earning  half salary  and kept  asking Central Bank of Kenya for  results  of investigations which  were  never supplied  to him and that   is why  he filed JR  390/2015 which   was dismissed  by Odunga  J on  21st September  2016.

10. The respondent Central Bank of Kenya represented by Wekesa, Simiyu advocates filed a replying affidavit sworn by Kennedy Kaunda Abuja on 27th January 2017 contending in his depositions that he is the Director, Governor’s Officer of Central Bank of Kenya.

11. According to the respondent, the exparte applicant’s motion is incompetent, an abuse of court process and incurably defective. It was contended that the applicant had earlier on filed a similar suit vide HC Miscellaneous Application No.  JR 390/2015  Republic  vs Director of Public  prosecution and  Governor of Central Bank of Kenya Exparte  Reuben  Ngila  Kitonyi  where the same orders as these were sought, which case  was dismissed by Odunga J  on 21st September  2016.

12. That the Governor  of Central  Bank has no capacity  to sue and  be sued  in his own  name  and that even though, the motion as filed  by the applicant is a mask, cloak, sham and  veil for a backdoor claim for  reinstatement  which this  court does not  have  jurisdiction to grant.

13. That  the applicant’s  services  with the Central Bank of Kenya were terminated  on 26th September  1996  on account  of gross misconduct after conclusion of disciplinary  process  undertaken in accordance with the Bank’ Staff Rules, Regulations and  Policies and which process was not underpinned  by the criminal   process  which was ongoing.

14. That as a consequence, his claim for reinstatement has overtaken by the statute of limitation. Further, that Article 165(5) and 162(2) of the Constitution bars this court from hearing and determining matters of Employment and Labour Relations.  That the applicant lied that  his motor vehicle KAA 250X had been vandalized but preliminary investigations revealed that the applicant  had breached rules governing care loan scheme and that he was involved  in forgery and  that before his  services with  the Central Bank of Kenya were terminated, he was given an opportunity to be heard  before the appointments, promotion and Disciplinary Committee meeting held on 18th September 1996  where he  was found to have forged documents  by stamping  and  signing  an  insurance  claim discharge voucher without the consent  and  knowledge  of the keeper  of the stamp.

15. That as a result, the committee  recommended the termination of the applicant’s services  as shown by  the  annexed  minutes and letter of termination  of employment  made  in accordance  with Rule  6. 21 as reads with Rules  3:17 and  3:46  of the Stamp Rules and  Regulations  annexed.

16. That thereafter, the applicant lodged several appeals for the termination to be reconsidered but his appeals were never successful. The respondent denies that the criminal case No, 2881/1996   was the cause of termination of the applicant’s employment.  That the police independently carried out their own investigations and  caused  the  applicant to be charged  with a criminal offence and that this  was after  the Central Bank of Kenya lodged a  complaint  hence malice  or illegality  cannot arise  under any circumstances  on the part of the  respondent.

17. That in any event, the applicant’s complaint against his prosecution and termination of the charges thereof should be directed at the Attorney General not the respondent who had no control over the case.

18. That if the applicant has any issues relating to his employment termination then he should lodge his claim with the Employment and Labour Relations Court and not the High Court hence the proceedings herein should be dismissed with costs.

19. With leave of court, the exparte applicant filed a further affidavit on 17th February 2017 in reply to the respondent’s affidavit sworn by Kennedy Kaunda.The applicant reiterated his earlier assertions and depositions and denied all the contentions and depositions by Mr Kennedy Kaunda.

20. Parties agreed  and filed  written submissions  and  when the matter   was due for  highlighting of  the  written  submissions, the applicant  was  granted  leave to cross examine  Mr Kenney Kaunda  the deponent   of the Respondent’s  replying affidavit.  Despite  spirited  opposition by the respondent’s counsel on record, the applicant  was on  23rd  October  2016  allowed to  cross examine  Mr Kennedy Abuga  Kaunda, Board Secretary and  Director on charge of legal  services at  Governor  of Central  Bank and Director  in the  Governor’s  office incharge  of  Security  and  communication.

21. In cross examination Mr Abuga stated that he joined the Central Bank of Kenya in 2005 and that he was aware of the JR 390/2015.  He denied that criminal charges were used to terminate the applicant’s services with Central Bank of Kenya.  He maintained that the termination letter of the applicant gave reasons.  He stated that as  a member  of staff of Central Bank of Kenya, he was suspended on 9th September  1996  in accordance  with Staff Rules and Regulations after he was given an opportunity to respond to the charges which he did  on  6th September  1996  in writing.

22. Further, that the applicant was given reasons for his suspension and he responded thereto.  He also stated that the car issue was related to the applicant’s employment as it was a benefit  arising from his employment and was governed by clear guidelines.  He stated that he had  not picked out  any invitation for the applicant  to appear  before  Appointments, Promotions and  Disciplinary Committee (APDC) but maintained  that the Appointments, Promotions and  Disciplinary Committee took into account Mr Ngila’s comprehensive response to the suspension issues raised.  He stated that he had  attached  as investigations report to his replying affidavit  although he denied  attaching the discharge voucher which he stated was in the investigations report.  He conceded that a show cause letter  was  not annexed  to his affidavit.  He stated that investigations  were  carried out by police to establish the  allegations  to police and  insurance  that the car was stolen.

23. Mr Abuga stated that the request for reinstatement was declined  by the Central Bank of  Kenya.

24. In re-examination by Mr Simiyu counsel for  the  respondent, Mr  Abuga  stated  that he had attached to his replying affidavit  at page 77 the letter of termination of the applicant’s  employment  and that the applicant responded  to the allegations  levelled against him.  He denied that the Central Bank of  Kenya had  been sued  before  the  Industrial Court  over the applicant’s  employment termination Mr Abuga maintained that he stood  by his  depositions  in his replying  affidavits.

25. Parties were then directed to highlight their written  submissions  on a later  date of  6th November  2017  but on  6th November  2017  they all  agreed to adopt  their written  submissions  and  authorities filed for the court’s consideration and  determination.

26. The applicant  had earlier on  filed  his submissions and  issues for  consideration.  He was also granted leave of court  to file his  highlights  after he lost his voice.

27. According to the applicant, he asked to be given elaborate  proceedings leading  to his termination  of employment  so that he can seek for  certiorari  to have those  proceedings quashed  after which  he can  seek for  mandamus  to have him  reinstated  back to  his job.

28. That he sought for mandamus because  despite his demands  for the elaborate proceedings leading to his termination from employment, the respondent  adamantly refused   to supply  him with the  proceedings.

29. According   to  Mr Ngila, without elaborate  proceedings being produced  by the respondent, the respondent  has no defence in this matter  where alternative  prayers  are sought  in the prayer  for mandamus.  The applicant maintained that this court has jurisdiction to  order for  mandamus and reinstatement since the criminal charges against him were terminated and that his dismissal was  done  without  any basis  in law as  he  was  never given  letter of  notice to show cause hence  there  was no reason to terminate  his employment.

30. He relied on John Shanguya vs The Public Service  Commission and 2 Others HC Miscellaneous Application  No. 31/1983  and maintained that in the absence of proceedings leading to his termination, he could only apply for mandamus not certiorari.  He also relied on Chief Constable vs Evans HL[1982] 141 on termination of employment and Jupiter Insurance Vs Rayabali  Hasham  [1960] EA 592with the  latter case relating to matters  of insurance  of motor vehicles.

31. In his highlights, the applicant maintained that he could only be discharged  from office according to the terms  of service, as a public officer.  He relied  on Ridge  vs Baldwin  &  others   and  argued that having been  discharged  in the criminal  case, those facts  in the criminal  matter could  not be relied  on to terminate  his employment  since  no evidence  was adduced  to prove  his involvement  in the alleged  crime of forgery.  He stated  that even after  cross examining Mr Abuga, it  was clear that there  were   no elaborate  proceedings  that led to his termination from employment hence this court  should order  for the reinstatement  of the applicant back into his employment.  The applicant  submitted  that he had been discriminated because  other staff of the respondent were on half pay when their  criminal cases  were pending and that after their acquittal, they were relied on  criminal case No. 511/2009 Republic vs Lucy Nyokabi Wairoto and  Agnes  Naiyala.

32. He maintained that he was never heard  and  was never given  a show cause  letter as required by the terms  of  his public  office, which facts he asserts, were never controverted by the respondent.

33. He further maintained that nobody can be discharged from a public  office  without application  of the Rules  of natural  justice.  That unlike in the Chief Constable of North Wales  Police  vs Evans  case, the applicant  was not a trainee.  That he was a full time employee.  The applicant  submitted  that before  his arrest, there  were  no internal  charges  preferred  against  him and that  he  was  never served  with those internal charges afterwards which violates the  rules of natural justice.  He also  submitted that this matter  is not the same  as JR  390/2015 because the  latter  matter related  to a criminal case hence this matter must cannot be resjudicata  390/2015  which related criminal  charges.

34. Reliance was placed on Ochong Okello  vs  Maseno University HC Miscellaneous Application 227/2003  (Kisumu)where the court  held  that “ decision  made by  persons  endowed with  authority  must be  certain, reasonable, predictable  and shoe  a sign of continuity but not to smack confusion and  contradiction.”

35. Further reliance  was placed  onUniversity of Ceylon vs  Fernando (no  Citation where the  Privy Council stated d that once a question is asked, and there is  no reply, there should  be clear position to grant an order of certiorari to quash the  dismissal.  That in this case, he has asked questions about  vouchers which he  was charged  with, in  the  criminal court  and that of  the  internal proceedings  but there is no  answer, yet  a voucher cannot   lead to a discharge, where even the effect  of the  that voucher is not stated.

36. The applicant urged this court  to allow his application and grant  the orders of mandamus as  sought so that he can be restored  into the service with costs to him.  Submissions  filed by the  applicant on 6th April  2017  the applicant  reiterated his position  and maintained that the respondents decision was not  reasonable  and  that the respondent  was evasive  and that in the absence of termination  proceedings  this court  must allow  his application.  He also cited the decision of Odunga J in JR  390/2015 where the learned judge  stated that  if  the applicant’s  termination of employment was based on the terminated  criminal proceedings there is nothing stopping him from reclaiming  his position  assuming  the law allows  such remedy.

37. The respondent filed submissions on 10th March 2017 maintaining  that the application by the applicant  is  an abuse of this court’s process because this matter is Resjudicata JR 390/2015.

38. Reliance  was placed on Omodi vs National Bank of Kenya  & Others [2001] EA 177 and E.T. vs Attorney General & Another [2012] e KLR  on the need  for courts to be vigilant  to guard  against litigants evading the doctrine of  resjudicata by introducing  new causes of action so as to seek the same  remedy before the court.  It was further submitted that the applicant’s application is already spent or overtaken by events and or the remedy sought has already been availed to him through the replying  affidavit  which shows  his services  were  terminated  for  gross misconduct  through an elaborate  process.  that under Section 10 of the  Employment  Act Cap  126, an employer  is only obliged  to keep employment  records of an employee for a period of 5 years yet in this case, it was submitted, the  respondent had availed documents showing the  process  leading to the applicant’s  termination.

39. It  was  submitted that therefore  the  2nd  limb of motion  which was  depended  on the first limb  of  availing  proceedings  of his termination, is superfluous.  It  was  also submitted  that Judicial Review  is not  concerned with  the merits  of the decision which is  apparent  in this case.  Reliance was placed  on James  Opiyo Wandayi vs KNA & 2 Others [2010] e KLR and  Republic  vs NTSA  & 10 Others exparte James  Maina Mugo [2015] e KLR.

40. It was also submitted that this matter is an employment  and Labour Relations matter disguised  as Judicial Review.  Reliance was placed  on Republic  vs Chief  Executive  Officer  IEBC & Another Exparte  M’ Anyiri  Hannington Gitaari[2016] e KLRwhere the court  held that  mandamus  is not an order  of specific  performance  like in a  contract  situation.  There must be  a statutory duty  in existence  to be performed  by the  person and which has not been performed.

41. Further  reliance  was placed on Seven  Seas Technologies  Ltd  vs Eric  Chege [2014] e KLRwhere the  court stated  that the High Court  is expressly  excluded  by the Constitution  to deal with  matters under Article  162  of the Constitution.

42. It was further submitted that any claim for reinstatement is barred by statute as the termination was made on 26th September 1996 over 20 years ago.  Reliance was placed on Section 90 of the Employment Act and Rosemary Wanjiku Kungu vs Elijah Macharia Githinji & Another [2014] e KLR.

43. The respondent urged the court to dismiss this case with costs to the respondent.

DETERMINATION

44. I have considered all the foregoing and more importantly, the exparte applicant’s several issues and submissions filed on  record one  after  the  other as highlighted  and the  authorities  relied on.  I have  taken into account  the  fact that  the  applicant   was  self  represented (prose) litigant  and  despite  advise  by the  court as stipulated  in Article 48  of the Constitution  that he obtains  free legal aid  and or representation from the  National Legal Aid Service  housed  at the office of the  Attorney General  and  Department of Justice, he declined.

45. I have also taken into account the respondent’s position and submissions supported by statutory, case law and constitutional provisions cited.

46. In my humble  view, they only  issue that  would  dispose  of the protracted matter which has taken this court a lot  of  judicial time to hear, so that the parties and especially the exparte  applicant who is self  represented to not only  feel that he has  been heard, but given ample opportunity to be heard  including cross examination of the respondent’s representative is  whether this court has jurisdiction to hear and  determine the matters raised  herein.

47. From the exparte applicant’s notice of motion, grounds, affidavits, brief  submissions , issues for  consideration, further  submissions and  issues  filed  and the  highlighted  submissions, no doubt, the claim hinges on his termination from the employment  on  26th September 1996  which he  claims  was  uncalled  for because he was never given an opportunity  to be heard  or even  a notice to  show cause  letter.  He also claims that  the  Central Bank of Kenya  terminated  his services  when  the criminal case was still pending and that therefore the criminal case having been terminated by the prosecution, though  without  involving  him, he  should be  restored  back to his job.  He seeks  for an order of  mandamus at the  respondents  to give the  applicant  certified  copies of  the proceedings  leading  to his termination of services from Central Bank of Kenya and   that if  there  are no such proceedings which led to his  discharge  from his office at the Central Bank of Kenya, then he be restored  without loss of benefits.

48. In his  submissions , the  applicant claims  that is  only after he is supplied with the  certified  copies of  proceedings that he can  apply for certiorari to quash the decision to terminate his services  otherwise he should be granted mandamus to compel the  supply of the proceedings and if such proceedings are not supplied  then the respondent  should be compelled  to restore  him to his job  at the Central Bank.

49. The respondent  in its replying  affidavit contends  that the claim herein is an abuse of  court process, is frivolous, vexatious, is spent, as the proceedings/minutes of the Appointments, Promotions and  Disciplinary Committee are now  annexed  to the reply; is unmerited and  that this court has no jurisdiction to hear  and determine such a matter which  relates  to Employment  and  Labour Relations which is in the presence  of  Employment  and  Labour Relations Court.  It is also alleged and contended that this matter is resjudicata JR 390/2015  where the applicant sought mandamus to compel the Director of Public Prosecution to give him an investigation report  after terminating his criminal case No. 2881/96 under the Section  87(a) of the Criminal Procedure Code pending investigations.

50. I have  no doubt  that the matter  relates  to Employment and  Labour Relations.  Similar or the same prayers could be  lodged  before the Employment and  Labour Relations Court.  That court  has the same  status as the High Court  but has no concurrent  jurisdiction with regard  to the nature of the disputes that the  court is to hear and determine.

51. Article 162(2)(a) of the Constitution contemplates the establishment  of a specialized  court to hear  and  determine  disputes  relating to Employment  and  Labour Relations.

52. Article 162(3) mandates Parliament to enact legislation to confer  jurisdiction and  functions to the  said court. In  2011, Parliament  enacted the  Industrial Court  Act which   was   later renamed  the  Employment  and  Labour Relations Court. Section 12(1) of the said court provides for the jurisdiction  of the said court  which includes disputes between  employees of former employees  and  their employers  or former  employees, among others.

53. In addition, Section  12(1)  of the Act  provides for powers of the court  to grant orders including prerogative orders or Judicial Review  remedies.  That means  that the court  is vested with jurisdiction to hear and  determine  Judicial Review  proceedings  and make  any of the  Judicial Review  orders or remedies  contemplated  in Sections 8 and 9  of the Law  Reform Act; and Order 53 of the Civil Procedure Rules to wit;  mandamus, certiorari and   prohibition.

54. Article 165 (5) (b)  of the Constitution  expressly  bars the  High Court from hearing  and  determining  disputes falling within the  jurisdiction of the  courts  contemplated  in Article 162(2)  of the Constitution.  The courts  are the Employment and Labour Relations Court  and the Environment and Land Court Act.

55. It follows that this court cannot arrogate itself of any jurisdiction which it  is not conferred with  and which  jurisdiction is, in the first instance, taken away by the Constitution and  an Act  of Parliament and clothed  in a specialized  court- Employment and Labour Relations Court.

56. The Constitution is the Supreme Law  of the land  and  where it either  confers or divests a court of jurisdiction, no other  organ, Authority or person  or body, not even  by  consent  of parties  can vest jurisdiction  in a court or tribunal.

57. Mandamus seeking supply of certified copies of proceedings  leading to the  applicant’s termination from employment  and  in default  the applicant be reinstated into his employment  are twin orders or Judicial Review  remedies  which can only be issued by  a court of competent jurisdiction.

58. Moreso, for mandamus  to issue, there must be  demonstrated  a public or statutory duty placed  upon the respondent  to perform, which  the respondent  has failed  to perform, and  not a discretionary  duty.

59. It was not demonstrated that the respondent Governor of Central  Bank who is an office holder of Central Bank of Kenya, a statutory  and  constitutional entity,  had failed to supply the applicant with proceedings  leading to his termination  from employment.

60. Nonetheless, the applicant  produced  minutes  of Appointments, Promotions and  Disciplinary Committee; and mandamus  not being an order of specific performance like in a contract  situation, this court is devoid of  any jurisdiction  to hear and determine the matters  raised  by the exparte  applicant which  all relate  to his employment with his  former  employer  Central Bank of Kenya and which matters the Employment  and  Labour Relations court would have  jurisdiction  to hear  and  determine  on their  merits.

61. For example, the Employment and Labour Relations Court  is the  only court which  can determine  whether in  terminating  the applicant , he  was  accorded  a hearing, whether the Rules  of natural  justice  were adhered  to, whether the termination was related to the  criminal  proceedings  in cr. 2881. 96  which  were prematurely  terminated  under Section 87(a) of the Criminal  Procedure Code  and therefore whether  the applicant deserved to be restored  back to his job.

62. Jurisdiction is everything without which  a court of law  acts in vain.  This is  a principle  espoused  in Owners of Motor Vessel “Lilian S” vs  Caltex  Oil (K) Ltd .

63. It is  for those reasons that  this court  having found  and  held that  it is devoid  of any jurisdiction  to hear and  determine  this matter  that it   must down its tools  and  say no more.

64. Accordingly, the entire proceedings hereto are struck out for want of jurisdiction, despite the court having accorded the applicant all the time that he required to be heard on his claim.

65. Costs are in the discretion of the court.  However, in this case, I am  of the view  that the  order that  commends  itself  in the circumstances  prevailing  in a  long standing  dispute  pitying  the applicant’s  former  employee of Central Bank of Kenya and  Governor of Central Bank of Kenya is that  each party  shall bear  their  own costs  of these proceedings which are hereby struck out.

Dated, signed and delivered in open court at Nairobi this 25th day of  January,  2018.

R.E. ABURILI

JUDGE

In the presence of:

M r Reuben Ngila the applicant in person

Mr Gathiba h/b for Mr Simiyu for the Respondent

CA:KOMBO