- This an appeal from the Judgment and decree delivered on 14/7/2023 by Hon. J P Omollo, Adjudicator at the Small Claims Court at Nairobi, SCCC Com E8128 of 2022. The appellant was the plaintiff in the small claims court
- The appellant was dissatisfied with the judgment and decree of the Small Claims Courts at Nairobi by and filed an appeal with humongous 10 grounds. It is unnecessary to set them out herein as the majority are on facts. The closest to questions of law is in ground 9.
- Such a long winded memorandum is anathema to good pleadings and an unnecessary affront to grammar and legal writing. It is a classic study on how not to write a memorandum of Appeal. Order 42 Rule 1 of the Civil Procedure Rules provides are doth: -
“1. Form of appeal –
- Every appeal to the High Court shall be in the form of a memorandum of appeal signed in the same manner as a pleading. (2) The memorandum of appeal shall set forth concisely and under distinct heads the grounds of objection to the decree or order appealed against, without any argument or narrative, and such grounds shall be numbered consecutively.”
- The Court of Appeal had this to say about compliance with Rule 86 of the Court of Appeal Rules (which is pari materia with Order 42 Rule 1 of the Civil Procedure Rules) in the case of Robinson Kiplagat Tuwei v Felix Kipchoge Limo Langat [2020] eKLR: -
“We are yet again confronted with an appeal founded on a memorandum of appeal that is drawn in total disregard of rule 86 of the Court of Appeal Rules. That rule demands that a memorandum of appeal must set forth concisely, without argument or narrative, the grounds upon which a judgment is impugned. What we have before us are some 18 grounds of appeal that lack focus and are repetitively tedious. It is certainly not edifying for counsel to present two dozen grounds of appeal, and end up arguing only two or three issues, on the myth that he has condensed the grounds of appeal. This Court has repeatedly stated that counsel must take time to draw the memoranda of appeal in strict compliance with the rules of the Court. (See Abdi Ali Dere v. Firoz Hussein Tundal & 2 Others [2013] eKLR) and Nasri Ibrahim v. IEBC & 2 Others [2018] eKLR. In the latter case, this Court lamented:
“We must reiterate that counsel must strive to make drafting of grounds of appeal an art, not an exercise in verbosity, repetition, or empty rhetoric…A surfeit of prolixious grounds of appeal do not in anyway enhance the chances of success of an appeal. If they achieve anything, it is only to obfuscate the real issues in dispute, vex and irritate the opposite parties, waste valuable judicial time, and increase costs.” The 18 grounds of appeal presented by the appellant, Robinson Kiplagat Tuwei against the judgment of the Environment and Land Court at Eldoret (Odeny, J.) dated 19th September 2018 raise only two issues…”
- Before handling the Appeal the court must be satisfied that the matter in the court below was properly before it. This is due to the direction from the supreme court relating to getting jurisdiction by scraft. In the case of Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others [2012] eKLR, the Supreme Court stated as doth: -
“This Court dealt with the question of jurisdiction extensively in, In the Matter of the Interim Independent Electoral Commission (Applicant), Constitutional Application Number 2 of 2011. Where the Constitution exhaustively provides for the jurisdiction of a Court of law, the Court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation. Nor can Parliament confer jurisdiction upon a Court of law beyond the scope defined by the Constitution. Where the Constitution confers power upon Parliament to set the jurisdiction of a Court of law or tribunal, the legislature would be within its authority to prescribe the jurisdiction of such a court or tribunal by statute law.”
- The court will therefore assume jurisdiction where it has and eschew jurisdiction where none exists. In Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR, justice Nyarangi JA, as he then was stated as doth;
“With that I return to the issue of jurisdiction and to the words of Section 20 (2) (m) of the 1981 Act. 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 down tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction. Before I part with this aspect of the appeal, I refer to the following passage which will show that what
I have already said is consistent with authority: -
“By jurisdiction is meant the authority which a court as 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. If no restriction or limit is imposed the jurisdiction is said to be unlimited. A limitation may be either as to the kind and nature of the actions and matters of which the particular court has cognisance, or as to the area over which the jurisdiction shall extend, or it may partake of both these characteristics.”
- The small claims court’s powers are limited to section 12 of the Small Claims Act. Other than that there are various limitations set out in the ACT and judicial interpretation arising from various cannons of interpretation. For example, an act cannot repeal or amend another by implication. Section 12 provides as follows: -
“12. Nature of claims and pecuniary jurisdiction (1) Subject to this Act, the Rules and any other law, the Court has jurisdiction to determine any civil claim relating to—
(a) a contract for sale and supply of goods or services;
(b) a contract relating to money held and received;
(c) liability in tort in respect of loss or damage caused to any property or for the delivery or recovery of movable property;
(d) compensation for personal injuries; and
(e) set-off and counterclaim under any contract.
(2) Without prejudice to the generality of subsection (1), the Court may exercise any other civil jurisdiction as may be conferred under any other written law.
(3) The pecuniary jurisdiction of the Court shall be limited to one million shillings.
(4) Without prejudice to subsection (3), the Chief Justice may determine by notice in the Gazette such other pecuniary jurisdiction of the Court as the Chief Justice thinks fit.
- The Act expressly excludes jurisdiction over certain matters. These are; -
“13. Exclusion of jurisdiction (1) If a claim has been lodged with the Court, no proceedings relating to the same course of action shall be brought before any other Court except where the—
(a) proceedings before that other Court were commenced before the claim was lodged with the Small Claims Court; or
(b) claim before the other Court has been withdrawn.
(2) A claim shall not be brought before the Court if proceedings relating to that claim are pending in or have been heard and determined by any other Court.
(3) Subject to section 12(3), a higher court may transfer a claim to a Small Claims Court.
(4) For the purposes of this section, a claim is deemed to have been lodged with the Court in any case where section 23 has been complied with.
(5) A claim shall not be brought before the Court if the cause of action is founded upon defamation, libel, slander, malicious prosecution or is upon a dispute over a title to or possession of land, or employment and labour relations.”
- This is not to down play the fact that there are matters that are matters, civil in nature but are not included in the exclusion. They are however excluded by virtue of the doctrine of Expressio unius est exclusio alterius. This means that expression of one thing is the exclusion of the other. By including the list of matters included in section 12, it limits the list unless expressly conferred by another statute. Section 13 are limitations that are rather obvious. In Oduor & 3 others v Magistrates and Judges Vetting Board & another (Civil Appeal 457, 458, 466, & 475 (Consolidated) of 2018) [2021] KECA 92 (KLR) (22 October 2021) (Judgment) (with dissent - HM Okwengu, JA), Kiage, JA, held as follows: -
“49. I am of the firm persuasion that words really must be given their ordinary meaning and that a provision such as section 23(2) of the Sixth Schedule means what it says. It is not the province of judges to attempt to go behind the word when that word is crystal clear, to attempt to read into it what was clearly excluded. The old rule or canon of interpretation expressio unius est exclusio alterius (“the expression of one thing implies the exclusion of others”) is particularly apt in the present case.
51. I would echo the practical wisdom of Justice Clerence Thomas in the US Supreme Court case of Conn Nat’l Bank vs Germain 503 US 249, 253-54 (1992)
.“--- In interpreting statute, a Court should always turn first to one cardinal canon before all others. We have stated time and again that courts must presume that a legislature says in a statute what it means and means in a statute what it says there.”
- The court cannot deal with divorce, separation, maintenance, succession, employment, work injury among others.
- This brings us to the current matter. The case relates to deductions being authorized by the Appellant’s employer. The Appellant maintains that the employer should not deduct unlawful amounts and remit to the Respondent. There is no order sought relating to the respondent. They are supposed to return Ksh 572,000/=. This money came from the employer.
- It is the employer effecting illegal deductions. The Respondent receives the money. Without the employer being party to the suit, the same is an employment dispute without an employer. The prayers sought are directed to nonparties.
- The court cannot issue an order against nonparties. The bulk of the dispute is an employment dispute. The dispute cannot be resolved without the employer. In the case of Mohamed Ali Baadi and others v Attorney General & 11 others [2018] eKLR, the high court stated as doth: -
“103. After a wide-ranging analysis and consideration of the applicable provisions of the Constitution and in particular, Articles 165(3), 162(2) and (3), and section 13 of the Environment and Land Court Act, and the amendments thereto, the five Judge Bench of the High Court held as follows: –
In its strict sense the “jurisdiction” of a Court refers to the matters the Court as an organ not an individual was competent to deal with and reliefs it was capable of granting. Courts were competent to deal with matters that the instrument, be it the Constitution or a piece of legislation, creating them empowered them to deal with. Such jurisdiction could be limited expressly or impliedly by the instrument creating the Court.
The jurisdiction of the High Court was unlimited save only as provided by the Constitution. The High Court had express jurisdiction to deal with and determine matters of a Constitutional nature under article 165(3) of the Constitution. Indeed, while the Constitutional claw back was found under article 165(5), article 165(3) (e) of the Constitution further confirmed that the High Court’s jurisdiction could be extended further pursuant to any statutory provision. For example the Judicature Act which conferred the specialized admiralty jurisdiction. The Constitution however did not provide for any other written law to limit the jurisdiction of the High Court.
Both the High Court and the ELC Court had a concurrent and or coordinate jurisdiction and could determine Constitutional matters when raised and do touch on the environment and land. Neither the Constitution nor the ELC Act limited the High Court’s jurisdiction in that respect ….
A closer reading of the Petition especially the complaints and the reliefs sought revealed that the petition was simply not about the environment and land. Substantial questions had been raised not only on the process of compulsory acquisition of land but also on the integration and generation of the environment. Questions had been raised about denial of access to information as well as a threatened contravention or violation of the right to fair administrative action. Questions had also been raised on the violation and or further threatened violation of the dignity of the petitioner’s constituents.
….. It could not have been the intention of the draftsmen of the Constitution that when the Court was faced with a mixture of causes of action touching on the Constitution, especially on fundamental rights, a separationalistic approach was to be adopted by the Court and half the claim dispatched to one Court as the other half was retained.
104. A similar position was held by a three-judge bench in Leisure Lodges Ltd v Commissioner of Lands & 767 others[51] citing the above decisions.
105. Subsequent to the above decisions, our Courts have identified the correct approach to determine the appropriate superior Court to hear such hybrid cases. The Courts have resolved the issue by inquiring what the most substantial question or issue presented in the controversy is. For example in Suzanne Butler & 4 Others v Redhill Investments & Another[52] the Court stated the test in the following words:
"When faced with a controversy whether a particular case is a dispute about land (which should be litigated at the ELC) or not, the Courts utilize the Pre-dominant Purpose Test: In a transaction involving both a sale of land and other services or goods, jurisdiction lies at the ELC if the transaction is predominantly for land, but the High Court has jurisdiction if the transaction is predominantly for the provision of goods, construction, or works.
The Court must first determine whether the pre-dominant purpose of the transaction is the sale of land or construction. Whether the High Court or the ELC has jurisdiction hinges on the predominant purpose of the transaction, that is, whether the contract primarily concerns the sale of land or, in this case, the construction of a townhouse.
Ordinarily, the pleadings give the Court sufficient glimpse to examine the transaction to determine whether sale of land or other services was the predominant purpose of the contract. This test accords with what other Courts have done and therefore lends predictability to the issue."
- The above case deal with a dispute in equal status courts. The lower courts are different. They can handle composite claims. However, the small claims court cannot handle an employment dispute. Even if the court was to grant orders sought the small claims court cannot order employers on what to deduct or not to deduct from their employees. Irregular deductions are questions of employment court. It is not for small claims.
- The test should always whether the matter can be heard by the high court, if the subject matter was 20,000,001. If the matter turns out to be for ELRC and environment and Land court, then it cannot be heard by the small claims court.
- It is important to disabuse parties of the notion that there must be an employer and employee relationship for the employment court to have jurisdiction. This was succinct in the supreme court decision in Petition Nos. E004 of 2023 & No. E002 of 2023 —Between Kenya Tea Growers Association, Agricultural Employers Association, County Pensioners Association —And— The National Social Security Fund Board of Trustees and 12 Others, Koome; CJ & P, Mwilu; DCJ & V-P, Ibrahim, Wanjala, Njoki, Lenaola & Ouko, SCJJ), where the supreme court stated as doth: -
“[79] In our view, there is nothing in the Constitution, the ELRC Act, or indeed in our decision in the Karisa Chengo Case to suggest that in exercising its jurisdiction over disputes emanating from employment and labour relations, the ELRC Court is precluded from determining the constitutional validity of a statute. This is especially so if the statute in question lies at the centre of the dispute…
[81] We now come to the specific question whether the ELRC correctly assumed jurisdiction to determine the constitutional validity of the NSSF Act 2013. Towards this end, we are persuaded by the appellants’ argument to the effect that the Court of Appeal adopted a rather restrictive view of the reach of the NSSF Act 2013, in holding that the matter before the ELRC did not emanate from an “employer-employee” dispute. The extensive provisions of the Act, requiring employers and employees to contribute specific amounts of money to a Social Security Fund cannot be said to have nothing to do with an employer-employee relationship. Even if the matter did not emanate from an employer-employee dispute within the confines of the ELRC Act, to the extent that it introduces enhanced and mandatory contributory amounts of employee earnings, the Act has potential to ignite justiciable grievances from certain cadres of employees. No doubt these grievances would end up at the ELRC which would likely be called upon, as it was in this case, to determine the constitutional validity of the same. But even beyond the employer-employee dispute resolution regime, the NSSF Act 2013, seeks to expansively regulate a wide array of labour relations especially the social security of the employed cadre when they finally exit formal employment. Should it then be surprising that an employee should be concerned about what his/her future would look like after salaried employment? [82] We must ask, who were the parties to this dispute? ”
- What was the real dispute in the Small Claims Court? To answer this we look at prayers. The Jurisdiction of the court to issue orders is set out in Section 36(1) of the Small Claims Court, No. 2 of 2016. The said act provides orders the court may issue as doth: -
“Orders of the Court
(1) The Court may, in relation to any claim within its jurisdiction, make one or more of the following orders—
- order to pay money either in lump sum or by instalments;
- an order for the restitution of any movable property;
- an order for the recovery of any sum in relation to performance of a contract;
- an order dismissing the claim to which the proceedings relate; or
- any such consequential or ancillary orders as may be necessary including, any stipulations or conditions for the enforcement of its orders or directions
- The main prayer sought by the Appellant was: -
“c. an order stopping the (employer) from deducting and remittance of a sum of Ksh. 13,586 per month to the Respondent.”
- This prayer is directed to the employer not the respondent. The contract for deduction, which was said to be done unlawfully was between an employer and employee. The dispute was therefore an employment dispute. The dispute with the Respondent is predicated on the first contract between employer and employee. A refund cannot be ordered without examining the employer-employee contract for deduction. The court should have declined jurisdiction.
- Further I have to deal with breach by the employer. This court is expressly forbidden by article 165(5) of the Constitution, which provides as doth: -
“(5) The High Court shall not have jurisdiction in respect of matters
(a) reserved for the exclusive jurisdiction of the Supreme Court under this Constitution; or
(b) falling within the jurisdiction of the courts contemplated in Article 162 (2)”
- What then commends itself. The proceedings before the court below were a nullity. The court cannot then proceed to the merit of the Appeal when it is based on a nullity. In Macfoy vs. United Africa Co. Ltd [1961] 3 All E.R. 1169, Lord Denning delivering the opinion of the Privy Council at page 1172 (1) said;
“If an act is void, then it is in law a nullity. It is not only bad, but incurably bad. There is no need for an order of the Court to set it aside. It is automatically null and void without more ado, though it is sometimes convenient to have the Court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.”
- In the circumstances, I set aside the judgment and decree of the Small claims court as it was by a court without jurisdiction. In lieu thereof, I strike out the suit in the Small Claims Court. Given that none of the parties succeeded, pursuant to section 33 of the small claims court, each party shall bear its own costs in the small claims court.
- The Supreme Court set forth guiding principles applicable in the exercise of that discretion in the case of Jasbir Singh Rai & 3 others v. Tarlochan Singh Rai & 4 others, SC Petition No. 4 of 2012; [2014] eKLR, as follows: -
“[18] It emerges that the award of costs would normally be guided by the principle that “costs follow the event”: the effect being that the party who calls forth the event by instituting suit, will bear the costs if the suit fails; but if this party shows legitimate occasion, by successful suit, then the defendant or respondent will bear the costs. However, the vital factor in setting the preference is the judiciously-exercised discretion of the Court, accommodating the special circumstances of the case, while being guided by ends of justice. The claims of the public interest will be a relevant factor, in the exercise of such discretion, as will also be the motivations and conduct of the parties, before, during, and subsequent to the actual process of litigation…. Although there is eminent good sense in the basic rule of costs– that costs follow the event – it is not an invariable rule and, indeed, the ultimate factor on award or non-award of costs is the judicial discretion. It follows, therefore, that costs do not, in law, constitute an unchanging consequence of legal proceedings – a position well illustrated by the considered opinions of this Court in other cases.”
- The Appellant field the incompetent suit in the Small claims court. It has been declared a nullity. It is fair that the foot some costs for the misadventure in this court. The respondent shall have costs of Ksh. 50,000/= for the Appeal, which must in any case be paid before any suit filed, in other courts.
Determination
- The upshot of the foregoing I make the following orders: -
- The Appeal is partly allowed. The judgment and decree given in Nairobi SCCCOM E8128 of 2022 are hereby set aside. In lieu thereof, I Substitute with an order striking out the suit in the Small Claims Court for being a nullity.
- Each party to bear their own costs in the small claims court.
- Costs of Ksh. 50,000/= to the Respondent, payable within 30 days, and in any case the Appellant shall not file suit before paying those costs.
- Both this file and Nairobi SCCCOM E8128 OF 2022 are closed.
DELIVERED, DATED and SIGNED at Nairobi on this 22nd day of March,2024. Judgment delivered through Microsoft Teams Online Platform.
In the presence of:
Mr Ogutu for the Appellant
Ms Musundi for the Respondent
Court Assistant – Kimoine