Mokua & 9 others v Registrar of Trade Unions & another (Cause 3 of 2014) [2014] KEIC 848 (KLR) (9 July 2014) (Ruling)

Mokua & 9 others v Registrar of Trade Unions & another (Cause 3 of 2014) [2014] KEIC 848 (KLR) (9 July 2014) (Ruling) Laban Mokua & 9 others v Registrar Of Trade Unions & another [2014] eKLR Neutral citation: [2014] KEIC 848 (KLR) Republic of Kenya In the Industrial Court at Nairobi Cause 3 of 2014 Nzioki wa Makau, J July 9, 2014 Between Laban Mokua 1st Appellant Moffat Munene 2nd Appellant Samson Omechi 3rd Appellant Douglas Wesonga 4th Appellant George Omondi 5th Appellant Phyllis Nyaitondi 6th Appellant Patrick Mulaghui 7th Appellant Jeniffer Naitore 8th Appellant Margaret Wakio 9th Appellant Neliud Luluma 10th Appellant and Registrar of Trade Unions 1st Respondent Kenya Union of Commercial Food & Allied Workers 2nd Respondent Ruling 1.The 2nd Respondent has raised a preliminary objectionagainst the Appeal. The appearances in the matterwere as follows: Mr. Jaoko appeared for the Appellants,Miss Kassim for the 1st Respondent while Mr. Nyabenaappeared for the 2nd Respondent. 2.The 2nd Respondent’s preliminary objection was asfollows:-1.That the purported Appeal is null and void2.That the purported Appeal is in contravention of Section 12 of the [Labour Relations Act](/akn/ke/act/2007/14)[, 2007](/akn/ke/act/2007/14).3.That the Appellants have not come to Court withclean hands and therefore do not deserve theexercise of the Court discretion in their favour. 3.Mr. Nyabena proposed to combine grounds 2 and 3 andargue them together. He submitted that the purportedAppeal was non-complaint with the law and it was notan appeal as known in law. The provisions of Section 30 of the [Labour Relations Act](/akn/ke/act/2007/14) were cited and submissionmade that a memorandum of appeal must be filedwithin 30 days and what was filed was not an appealbut a Notice of Motion. It was submitted that Rule 8(3) is in mandatory terms and Form 1 of the Schedule wasnot complied with. He submitted that there is no memoof appeal and the Court has no jurisdiction to hear amatter where its jurisdiction has not been invoked byadherence to the Rules. He submitted that one cannotnot amend that which does not exist. 4.Miss Kassim for the 1st Respondent fully associatedherself with the submissions made and emphasisedthat the Appellants have not complied with Section 20 of the [Labour Relations Act](/akn/ke/act/2007/14) and thus she sought thedismissal of the appeal with costs. 5.Mr. Jaoko for the Appellants submitted that the secondlimb of the argument by the 2nd Respondent on breachof Section 12 of the [Labour Relations Act](/akn/ke/act/2007/14) purely bringsin an issue the Court cannot address by preliminary objection. Whether the appellants have violated theprovisions of Section 12 of the [Labour Relations Act](/akn/ke/act/2007/14) orwhether they have come with unclean hands cannot bedetermined by preliminary objection save by documentary or vica voce evidence to enable the Court to interrogate the facts and come to a conclusion. Hesubmitted that a preliminary objection cannot be raisedwhen the facts are in dispute. He relied on the case of Mukisa Biscuits Manufacturing Co. v West End Distributors [1969] EA at 701 where Sir Charles Newbold P agreed with Law JA and held where facts areto be ascertained a preliminary objection cannot beraised. Further to that he submitted that what wassought by the applicants was judicial discretion andthat cannot be subject to preliminary objection. Hesubmitted the issues in contention were triable issueswhich cannot be subject of a preliminary objection. He relied on the case of [Johnson Githaiga & 4 others v Nicosa Nderitu & 3 Others](/akn/ke/judgment/keca/2013/93) Civil Appeal 229 of 2012 (Unreported) and [KNTC v Bawazir Co.](/akn/ke/judgment/kehc/2003/686) (1993) HCCC 258 of 1997 (Unreported). He submitted that in reliance of Rule 14(6) the Court should exercise itsdiscretion to allow a party to amend to conform withthe standard legal requirement and that Section 20 ofthe Industrial Court Act states that Court will notsubject the pleadings to technicality. He thus urged theCourt to disallow the preliminary objection and allowthe Appellants to amend. 6.In his reprise the advocate for the 2nd Respondentsubmitted that the issue of recruitment is not a fact indispute. He submitted that regarding compliance ofRule 8 it seemed that the Appellants had admitted thatthere is no appeal. 7.The law on preliminary objection is settled. The locusclassicus being the oft-cited case of Mukisa Biscuit Manufacturing Co. Ltd v. West End DistributorsLtd [1969] EA 696\. In that case it was held that apreliminary objection is a point of law when if takenwould dispose of the suit. Law JA. stated a preliminaryobjection to be thus:-“So far as I am aware, a preliminary objectionconsists of a point of law which has beenpleaded, or which arises by clear implication outof pleadings, and which if argued as apreliminary point may dispose of the suit.Examples are an objection to the jurisdiction ofthe court, or a plea of limitation, or a submission that the parties are bound by the contractgiving rise to the suit to refer the dispute toarbitration.” 8.The passage submitted by Mr. Jaoko was from theholding by Sir Charles Newbold, President. The learned judge stated in the same judgment asfollows:-“A preliminary objection is in the nature of whatused to be a demurrer. It raises a pure point oflaw which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to beascertained or if what is sought is the exerciseof judicial discretion.” 9.The Court has been told it has no jurisdiction to entertain the Appeal. The leading case on jurisdictionis the celebrated case of [Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd](/akn/ke/judgment/keca/1989/48) [1989] KLR 1 where Justice Nyarangi of the Court of Appeal held as follows“I think that it is reasonably plain that a question ofjurisdiction ought to be raised at the earliestopportunity and the court seized of the matter isthen obliged to decide the issue right away on thematerial before it. Jurisdiction is everything.Without it, a court has no power to make one more step. Where a court has no jurisdiction, there wouldbe no basis for a continuation of proceedingspending other evidence. A court of law downs toolsin respect of the matter before it the moment it holds the opinion that it is without jurisdiction." 10.The authority for this holding by Nyarangi JA isto be found in the writings of John Beecroft Saunders in a treatise which is no longer published headed [Words and Phrases Legally ](https://books.google.co.ke/books/about/Words_and_Phrases_Legally_Defined.html?id=a4fPvwEACAAJ&redir_esc=y)[Defi](https://books.google.co.ke/books/about/Words_and_Phrases_Legally_Defined.html?id=a4fPvwEACAAJ&redir_esc=y)[ned](https://books.google.co.ke/books/about/Words_and_Phrases_Legally_Defined.html?id=a4fPvwEACAAJ&redir_esc=y) – volume 3:i – n page 113 and it states the following about jurisdiction:-“By jurisdiction is meant the authority which a court has to decide matters that are litigated before it or totake cognisance of matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter, or commissionunder which the court is constituted, and may beextended or restricted by the like means. If no restriction or limit is imposed the jurisdiction is saidto be unlimited. A limitation may be either as to thekind and nature of the actions and matters of whichthe particular court has cognisance, or as to the areaover which the jurisdiction shall extend, or it maypartake of both these characteristics. If thejurisdiction of an inferior court or tribunal (includingan arbitrator) depends on the existence of aparticular state of facts, the court or tribunal must inquire into the existence of the facts in order todecide whether it has jurisdiction; but, except wherethe court or tribunal has been given power todetermine conclusively whether the facts exist.Where a court takes it upon itself to exercise ajurisdiction which it does not possess, its decisionamounts to nothing. Jurisdiction must be acquiredbefore judgment is given." 11.Clearly, if I lack jurisdiction to entertain the Appealthe matter will be at an end as I will have to down mytools and take no further step. 12.The Appellants approached the Court under Certificate of urgency on 17th April 2014. In the application seeking conservatory orders various documents were attached. At page 18 the Appellants attached a Record of Appeal while at page 16 they attached a copy of the Form at the First Schedule whichis blank but signed and dated on page 17. Section 12 and 20 of the [Labour Relations Act](/akn/ke/act/2007/14) have been cited butI do not think these are applicable in terms of thepreliminary objection taken. In the submissions bycounsel for the 2nd Respondent this aspect of the claimrelates to issues that would be best resolved by way ofdocumentary or viva voce evidence. 13.The Appellants have cited the case of [Johnson Githaiga & v Nicosa Nderitu](/akn/ke/judgment/keca/2013/93) (supra) and [KNTC v Bawazir](/akn/ke/judgment/kehc/2003/686) (supra) which are decisions that findresonance with this Court. The Courts in the two cases were dealing with issues that were triable and thuscould not fit in the confines of a preliminary objection.The pronouncements were sound and ought to be followed. In this case we have something deeper andmore profound. One aspect of the case would requiredelving into facts but as pointed out earlier that does not fit within the purview of the preliminary objection. 14.Section 18 of the Industrial Court Act 2011 specifies that an appeal lies to this Court against the decisions of the Registrar of Trade Unions. Rule 8 of the [Industrial Court (Procedure) Rules 2010](/akn/ke/act/ln/2010/78/eng@2022-12-31) provides as follows:-8.(1)Where any written law provides for an appealto the Court, an aggrieved person shall file amemorandum of appeal with the Court within thetime specified for that appeal under the written law.(2)Where no period of appeal is specified in thewritten law, an appeal shall be filed within thirty daysfrom the date the decision that is the subject ofappeal was delivered.(3)A memorandum of appeal shall be in Form 1 setout in the First Schedule.(4)A memorandum of appeal shall be accompaniedby copies of all documentary evidence that anappellant wishes to rely on in the Appeals. 15.In the case before me, the Appellant did not file a Memorandum of Appeal either in the format of Form 1 set out in the First Schedule or at all. The objection taken in that respect is that the purported appeal is null and void. The provisions of the Industrial Court and the [Constitution](/akn/ke/act/2010/constitution) of Kenya Article 159 are that the Court should not give undue regard to technicalities. The mode and manner of approaching a Court is not a technicality. Where rules make provision on the manner of approach and a party attempts to partially comply that cannot be said to be a technicality. The failure to invoke jurisdiction is fatal. I take comfort in the words of John Beechroft Saunders who states that by jurisdiction is meant the authority which a court has to decide matters that are litigated before it or to take cognisance of matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter, or commission under which the court is constituted, and may be extended or restricted by the like means. In the statute in place the authority of this Court is to entertain Appeals preferred. The matter before Court is not capable of being cured by anamendment and in the premises the preliminary objection taken by the 2nd Respondent and supportedby the 1st Respondent succeeds. I strike out the suit before Court with costs to the Respondents. Orders accordingly. **DATED AND SIGNED AT NAIROBI THIS 9 TH DAY OF JULY, 2014.****................................................****NZIOKI WA MAKAU****JUDGE** *[EA]: East Africa Law Reports *[JA]: Judge of the Court of Appeal *[HCCC]: High Court Civil Case *[KLR]: Kenya Law Reports