1. By a Motion dated 9th March, 2023, the respondents applicants sought orders among others that pending the hearing and determination of the intended appeal against the ruling delivered on 27th February, 2023 ( Mbaru J), the Court be pleased to grant an order to stay any further proceedings in the matter. The applicant particularly sought that the Court orders that the respondent need not file any statements of response, list of witnesses, witness statements, list and bundle of documents or any other pretrial documents pending the hearing inter partes and determination of the Motion.
2. The application was based on the grounds inter alia that:
a) On the 3rd October, 2022 the respondents filed a Notice of Motion dated 30th September, 2022 ( hereinafter referred to as first application) seeking orders among others, the striking off the record the claimants suit against the respondent on grounds among others, want of jurisdiction and misjoinder of the applicants in the suit.
b) On 20th December, 2022 the Court delivered its ruling in which the Court dismissed the application
c) In this ruling, counsel contended that the Honourable Court erroneously held that whereas the parties attended Court and agreed to the disposal of the subject application by way of written submission, only the claimants complied. Further, the ruling made no reference to the respondents’ supplementary affidavits and submissions. As a consequence, the Court failed to consider the respondent’s factual and legal submissions on the contested issues in the claim.
d) On 23rd January, 2023 the applicants filed a Notice of Motion dated (hereinafter referred to as second application) seeking review of the ruling given in the first application on account of error apparent on the face of the record
e) Specifically that the Court erred in holding in its first ruling that only the claimant had complied with the directions relating to the filing of written submissions and proceeded to determine the first application without considering the applicants submissions and authorities given yet the applicants authorities and submissions were filed on 9th December, 2022 and that the same were available to the Honourable Court on the. Judiciary’s e-filing portal since 9th December, 2022.
f) The determination of the application without considering the application’s submissions and authorities on such highly contested issues as those raised by the application amounted to violation of the applicants constitutional rights to a fair hearing and to equal benefit and application of the law and is thus a sufficient cause for review of the first ruling.
g) The second application was placed once again before Honourable Lady Justice Mbaru who after giving directions on the disposal, on 27th January, 2023 gave its ruling thereon. According to the applicant, the learned Judge though acknowledging the errors apparent on the face of the record, dismissed the application on the grounds that to review the first ruling would be tantamount to an appeal.
h) Following the delivery of the second ruling the Court directed the respondents to comply with rule 13(1) of the Court’s Rules by filing a substantive response to the claim within 14 days which time would start running from 27th February, 2023 and lapse on 13th March, 2023.
i) The respondents being dissatisfied with the second ruling intend to appeal against the same and have filed a Notice of Appeal. The respondents further state that they are reasonably apprehensive of filing a response to a claim they believe is improperly before the Court and that they are improperly joined as parties to, as to participate in such proceedings would be an exercise in futility in view of the intended appeal.
3. According to Counsel for the respondents Mr. Njoroge Regeru, the claimant was employed and appointed by Ecobank South Sudan Limited as the County Treasurer on or about 1st August, 2013. He served in that capacity until 1st April, 2019 when he became the Managing Director of Ecobank South Sudan. The claimant was also a Board Member of Ecobank South Sudan. At all times the performance of the claimant’s employment was in Juba, South Sudan for the benefit of the people of South Sudan. The employment was terminated on 13th April, 2021.
4. The 1st respondent further contended that it was a public limited company incorporated in Lomé, Togo. It is a financial institution that does not engage in direct banking activities. Its principal objective is to oversee the activities of the operating units that it establishes or acquires for the provision of banking, economic, financial and development services within Africa and such other places in the world as may be necessary.
5. Counsel further stated that the 1st respondent has segmented its affiliates into geographical regions according to their location, namely; Nigeria, Francophone West Africa (UEMOA), Anglophone West Africa (AWA) and Central and Eastern and Southern Africa (CESA) for ease of oversight, management and administration. The regions are merely the geographical location of the affiliates and they are not legal entities. The regions can be disbanded or re-arranged at any point depending on the needs and strategic orientation of the Ecobank Group. Each region is overseen by a regional executive who also doubles up as the Managing Director in one of the affiliates in the respective region. The regional executive oversees/supervises the performance of other managing directors of the affiliates in their respective region. Each region has regional executive and all managing directors in each region report to their respective regional executives. Further, all the managing directors of the 1st respondent’s subsidiaries are members of Ecobank Group Business Leaders Conference by virtue of their positions. The 1st respondent has no office or place of business in Kenya and has no agent in Kenya and that the banking entities affiliated to the 1st respondent are limited liability companies incorporated, regulated and governed by the laws of the countries they are situated or resident.
6. Mr. Regeru further contended that the claimant’s former employer, Ecobank South Sudan was within CESA region for the purposes of administration and oversight by the 1st respondent. At all times material to the dispute, the managing director of Ecobank Kenya was also doubling up as CESA’s regional executive. The claimant was accountable to the Board of Directors, Ecobank South Sudan and administratively to the regional executive CESA region. CESA is not a legal entity capable of being sued but an administrative unit of the 1st respondent for ease of management, administration, organization and supervision of its subsidiaries in the region. Ecobank Kenya is limited liability company duly incorporated in Kenya under the Companies Act. It is registered and licensed to carry out banking business under the Banking Act and had been sued merely on account of its being the current seat of the regional executive for the CESA region.
7. Concerning stay of proceedings, counsel submitted that it is a serious judicial action which seriously interferes with the right of a litigant. It impinges on the right of access to justice, right to be heard without delay and overall, the right to fair trial. Therefore the test for stay of proceedings is high and stringent. It is however discretionary power exercisable by the Court upon consideration of facts and circumstances of each case. The respondent’s application for stay of proceedings is based on the grounds that the respondent’s appeal to the Court of Appeal against the 2nd ruling would be rendered nugatory and therefore a waste of scarce judicial time if the proceedings before the court is not held in abeyance pending the hearing of the appeal. In addition the respondent’s right to be heard on the issue of jurisdiction and misjoinder would be impeded and as a consequence incur a hefty cost in unfairly defending the substantive dispute. In this regard, counsel relied in the case of Vata Nganda vs. Africa Practice East Africa Limited [2021] eKLR.
8. Mr Regeru further submitted that the stay application has been brought timeously. There was no delay. The decision was delivered on 22nd February, 2023 and the stay application filed on 10th March, 2023. On the issue of abuse of process, counsel submitted that the respondent had moved the court under section 17 of the ELRC Act. The respondent was accessing justice as enshrined in the Constitution yet the respondent wanted to deny the Court of Appeal the right to determine the merit of the appeal. The decision of the Court if it proceeds may ultimately be overturned because the jurisdiction of the Court has been challenged in a superior court.
9. Ms Guserwa for the respondent submitted that the issue of jurisdiction of the Court is spelt under section 12 of the ELRC Act and had been determined. The claimant was a Kenyan having been hired in Kenya and posted to work in a foreign country being Southern Sudan. Once the Court determined the issue relating to jurisdiction and the applicant failed to appeal instead chose to seek a review which was dismissed, it could not revisit the issue. Any application for stay in therefore made in bad faith and intended to delay the finalization of the matter.
10. According to Counsel, the 1st applicant is the parent and holding company of Ecobank South Sudan amongst other Banks in East and Central Africa. It has a head office in Nairobi Kenya from where it interviewed the claimant and recruited him before posting him to South Sudan. The Court therefore had jurisdiction in the matter.
11. Concerning stay, Counsel stated that conditions for stay orders had not been met by the applicant as they had not demonstrated what loss if any they were bound to suffer if the stay proceedings were not granted. The applicants had further not shown how viable or arguable the appeal was. In this regard counsel relied on the case of Chris Munga Bichange v Richard Nyagaka Tongi & Another [2013]eKLR.
12. It was common ground that the issue of the jurisdiction of the Court was canvassed in the first application and the Court having heard parties on merit dismissed that application. The applicant brought the second application for review under rule 33(1) of the Court rules. The second application was premised mainly on two grounds namely that the Court (Mbaru J) appeared to have been mistaken that the applicant did not file submissions and authorities as directed by the Court. Further, the ruling made no reference to the respondents’ supplementary affidavit. As a consequence, the Court failed to consider the respondent’s factual and legal submissions on the contested issues in the claim. The Court in dismissing the second application stated as follows:
“ In the grounds supporting the instant application, the respondents are clear to the extent that the issues raised in the application dated 3rd October, 2022 and the subject of the ruling on 20th December, 2022 were mainly two-fold- that of jurisdiction and misjoinder. These are the core issues in the ruling of the Court and now the subject of the instant application on the basis that the court in addressing the issue of challenged jurisdiction and the alleged misjoinder of the respondents as the applicants herein failed to consider the written submissions and list of authorities of the respondents particularly the supplementary affidavit of Marguerite EKOUM Ebembo and Caroline Mbenge… the assertions by the respondents are that unless the court reviews the ruling delivered on 20th December, 2022 there will be violation of the right to a fair hearing and equal protection of the law since the issue of jurisdiction and misjoinder are highly contested on solid and factual and legal grounds…in the ruling delivered on 20th December, 2022 the Court in analyzing the subject of the same being Notice of Motion dated 30th September, 2022 relied and applied matters outlined in the supporting affidavit of Marguerite EKOUM Ebembo and the supporting affidavit of Caroline Mbenge…without regurgitating the entirety of the supplementary affidavit and written submissions by the respondents, the issues for determination clarified and not controverted, the court made a finding with regard to its jurisdiction and on the issue of misjoinder of parties and dismissed the same on merits. To review such matters already addressed on the merits particularly the same having been identified by the respondents as forming the gist of the application dated 30th September, 2022 would in my view sit on appeal.”
13. This is the ruling the applicant in the present application has appealed against and therefore for reasons stated as canvassed earlier in the ruling, seeks an order in the main that this Court stays the proceedings before this Court pending the outcome of the appeal. As rightly pointed by Mr. Njoroge Regeru, stay of proceedings is a serious judicial action which seriously interferes with the right of a litigant. It impinges on the right of access to justice, right to be heard without delay and overall, the right to fair trial. Therefore the test for stay of proceedings is high and stringent. It is however a discretionary power exercisable by the Court upon consideration of facts and circumstances of each case.
14. The applicant has contended that this Court risks wasting judicial time and resources proceeding to hear the present suit during the pendency of the appeal against the ruling of Honourable Lady Justice Mbaru on the application for review herein. Counsel has further raised concern over the possible legal costs the applicant would incur in the event that it proceeds to prepare and defend the claim herein only for the Court of Appeal to uphold the applicants’ objection on jurisdiction and misjoinder. These are by no means frivolous concerns. They touch on the principal guidelines on case management by the Court which include ensuring among others that whereas litigation should be timeous and expeditious it ought as well be affordable and proportionate.
15. The structure of the litigation system in Kenya places this Court, the High Court and ELC below the Court of Appeal and the Supreme Court. The decisions of the Court of Appeal and the Supreme Court are binding on these Courts of equal status. As a matter of caution therefore whenever the Court of Appeal or Supreme Court is seized of an aspect of a matter not fully concluded by these Courts, wisdom demands that these Courts do not take any precipitate action that might on the face of if appear to disregard or contradict any order or direction the Court of Appeal or Supreme Court might ultimately make with regard to the aspect of the matter they are seized of.
16. As has been stated severally, jurisdiction is everything. Without jurisdiction the Court cannot proceed any further. It must down its tools. The applicant has in spite of the fact that this Court has twice overruled it on the issue of misjoinder and jurisdiction, wants to take the issue to the Court of Appeal. The applicant strongly believes the claimant was an employee of Ecobank South Sudan hence they have been wrongly dragged into the present suit. The learned Judge of this Court listened to the arguments by both parties, analysed the same and twice declined to see the issues from perspective of the applicant. They therefore have every right to move the Court of Appeal on the matter. It would therefore not be tidy for this Court to proceed and ask the parties to process the matter for hearing before it while the issue of whether the Court has jurisdiction is pending before a Court superior to it. Should the Court of Appeal agree with the applicant, the Court and the parties will have not made good use of their time and resources.
17. As observed earlier, this Court is alive to principles governing case management. That is to say while ensuring among others that litigation should be timeous and expeditious, it ought to as well be affordable and proportionate. To proceed with the suit herein while the issue whether the Court has jurisdiction to hear it is pending in the Court of Appeal, would not be economical and proportionate use of the Court’s time. The Court is more than willing to expeditiously hear of all cases before it however such willingness must not make it proceed with matters where its jurisdiction has been challenged in a superior court.
18. In conclusion the Court will grant the application to the extent that proceedings herein will be stayed pending the outcome of Civil Appeal No. E203 of 2023 pending in the Court of Appeal
19. It is so ordered.
Dated at Nairobi this 3rd day of August, 2023
Abuodha J.N
Judge