Nyaga v Teachers Service Commission (Civil Appeal 403 of 2019) [2024] KECA 1928 (KLR) (20 December 2024) (Judgment)
Neutral citation:
[2024] KECA 1928 (KLR)
Republic of Kenya
Civil Appeal 403 of 2019
SG Kairu, AO Muchelule & WK Korir, JJA
December 20, 2024
Between
Kithure M’Mwenda Nyaga
Appellant
and
Teachers Service Commission
Respondent
(Being an appeal from the ruling and order of the Employment and Labour Relations Court of Kenya at Nairobi (O. Makau. J) dated 14th June 2019 in ELRC No. 871 of 2014
Cause 871 of 2014
)
Judgment
Judgment Of The Court
1.The appellant, Kithure M’Mwenda Nyaga, worked for the respondent, Teachers Service Commission, as a teacher between 24th March 1990 and 6th May 2004. He was dismissed from employment for insubordination:- that while teaching at Chief Mbogoria Girls Secondary School, he had refused to receive the District Education Officer’s letter deploying him as an invigilator for KCSE for 2003. His appeal against the dismissal was on 8th October 2008 dismissed.
2.In a notice of motion dated 24th February 2014 in Nairobi Miscellaneous Application No. 16 of 2014 filed in the Employment and Labour Relations Court, the appellant sought leave to file a suit before the court out of time to challenge his dismissal from employment on the basis that the dismissal was substantially and procedurally unfair and wrongful. His case was that because he had suffered from mental illness as evidenced by the doctor’s letter dated 15th January 2013, he had not been able to file a suit on time to challenge his dismissal.
3.The application was opposed by the respondent on the basis that the court lacked jurisdiction to extend time; that there was justification for limitation of time regarding actions in employment andor industrial disputes; and that there was failure to support the application with sufficient, compelling and reasonable grounds.
4.Nonetheless, on 31st March 2014 the learned Linnet Ndolo, J. granted leave to the appellant to file the suit against the respondent out of time. It was on that basis that on 26th May 2014 the appellant filed his statement of claim seeking, among other prayers, that his dismissal by the respondent was unfair and wrongful. The respondent filed its statement of defence on 24th June 2014 in which it was denied that the dismissal had been unfair or wrongful. It was pleaded that the dismissal followed the appellant’s failure andor refusal to proceed for invigilation of the KCSE, which failure andor refusal amounted to sabotage of a national examination; and that the dismissal had been arrived following an elaborate disciplinary procedure in which the appellant had been given a reasonable opportunity to be heard and the rules of natural justice had been adhered to. It was sought that the claim be dismissed with costs for lack of merit.
5.It is important to note that there was no plea on the part of the respondent that the claim had been caught up by the limitation of time.
6.The dispute was heard on 23rd February 2017 and on 9th February 2018 by the learned Onesmus N. Makau, J. The appellant testified and called two witnesses. The respondent called two witnesses. In the judgment that was delivered on 2nd November 2018, the trial court did not deal with the merits of the claim. Instead, it found that, under section 4(1)(a) of the Limitation of Actions Act or section 90 of the Employment Act 2007, the claim was filed outside the limitation period by over two (2) years, and therefore there was no jurisdiction to hear and determine it. The suit was dismissed for want of jurisdiction.
7.On 23rd November 2018 the appellant brought an application to have the judgment reviewed on the basis that it had not been considered that the filing of the claim had followed a successful application by the applicant to have the same filed out of time. The respondent filed grounds to oppose the application for review. According to it, the court did not have the jurisdiction to review the judgment; that what was open to the appellant was to appeal the judgment, if he was aggrieved by it.
8.The application was argued, and on 14th June 2019 the learned Judge dismissed it with costs. There was acknowledgement that under Rule 33(1) of the Employment and Labour Relations Court Procedure Rules, the court had the power of review. However, it was noted that the existence of the order to file the suit out of time had not been brought to its attention throughout the proceedings. The court then proceeded as follows:-
9.This is the ruling that led the appellant to file the instant appeal which raised sixteen (16) grounds that can be summarised as follows:-a)whether the learned Judge could lawfully ignore all the issues and evidence tendered by the parties to the claim and instead found his decision on an unpleaded issue;b)whether the learned Judge could make a finding of fact that was contrary to the facts established by the record;c)whether the learned Judge could ignore the undisputed existence of leave; andd)whether the learned Judge could anchor his decision on his suspicion not based on the facts or raised by either party.
10.When the appeal came up for hearing, learned counsel Mr. Change for the appellant and learned counsel Mr. Peter Mulaku for Mr. Anyuor for the respondent had each filed written submissions. They all elected to rely on such submissions.
11.In the submission by learned counsel for the appellant, it was undisputed that his client had been granted leave to file the claim out of time; the leave followed a hearing that involved the respondent; and the respondent did not in his defence raise the issue of limitation. Therefore, it was argued, limitation was not an issue raised for determination by the court and it was wrong for the court to dismiss the claim based on it. Secondly, it was submitted that among the appellant’s list of documents in the trial court was the ruling dated 31st March 2014 (see page 51, line 21 of the Record of Appeal), and, further that, in the respondent’s list of documents dated 10th November 2016, there was annexed the appellant’s application dated 24th February 2014 seeking leave to file the suit out of time (see page 122, line 15 of the Record of Appeal). Therefore, learned counsel submitted, the application for leave and the ruling formed part of the record, and that the court fell into error when it stated that the record did not reflect these.
12.Citing the decisions in George Omondi -vs- Guilders International Bank Limited [2015] eKLR, Dakianga Distributors (K) Ltd -vs- Kenya Seed Company Limited [2015]eKLR and IEBC & Another -vs- Stephen Mutinda Mule & 3 Others, Civil Appeal No. 219 of 2013, learned counsel for the appellant submitted that the learned Judge had the duty to hear and determine the issues as pleaded by the parties; that in this adversarial system, the parties themselves had set the agenda for the court to determine and therefore that left no room for the court to delve into other issues not raised. Learned counsel further pointed to us the decision of this Court in Clement Ernest Opiyo Murenga - vs- Principal Secretary, Treasury & Another [2017]eKLR, which was an employment related dispute, in which the Court reiterated that in a case based on limitation of action as a ground, the same must be pleaded by the respondent, as required by Order 2 Rule 4(1) of the Civil Procedure Rules. Lastly, it was submitted that if the Judge did not notice that leave had been sought and obtained, that was an error on the face of the record which was correctable by review, as was stated in National Bank of Kenya Ltd -vs- Ndungu Njau [1997]eKLR; that this was not an erroneous decision, that was correctable by appeal, but an error or omission on the face of the record that was correctable by review. (See Nyamogo & Nyamogo -vs- Kogo [2001]EA. 174).
13.On the part of the respondent’s counsel, the appellant’s application had not met the threshold for review and that, in any case, the court had the power to raise the issue of limitation suo moto and determine it, as was done on this case.
14.As the first appellate court, our responsibility is to reconsider the evidence that was adduced before the trial court, re- evaluate it, and satisfy ourselves that the conclusions reached by the trial Judge were consistent with the evidence. (See Sanitam Services (EA) Ltd -vs- Rentokil [2006]KLR 70).
15.We are of the opinion that the singular question for determination in this appeal is whether the learned Judge erred in deciding that there was no error apparent on the face of the record, and therefore dismissing the appellant’s application for review. We are conscious of the fact that what is before us is not an appeal against the judgment of 2nd November 2018 in which the learned Judge suo moto dismissed the appellant’s claim on the basis that it was statute barred by limitation.
16.Rule 33(1) and (2) of the Employment and Labour Relations Court Practice Rules provides as follows:-
17.It was clear that the appellant, before filing the claim against the respondent, had applied for, and obtained, leave to file the claim out of time. That was why, in our considered view, the respondent, in its statement of defence, did not raise the issue of limitation. It is also clear that the learned Judge was unaware that such leave had been obtained. That was the reason he raised the issue suo moto and dismissed the claim on the basis of limitation. We do not want to say that the issue of limitation ought to have been specifically pleaded by the respondent, under Order 2 rule 4(1) of the Civil Procedure Rules, and neither do we want to reiterate that the trial court had the jurisdiction to raise the issue of limitation suo moto, but that, after he had raised it, it was incumbent upon him to invite the parties to address him on the issue, if the decision was going to turn on it. Otherwise, the losing party would claim that he had been condemned unheard.
18.Back to this appeal. Once the trial court was, in the application for review, made aware that all along leave had been granted to file the claim out of time, it ought to have become clear that there was an error or omission on the face of the record; that had the court been aware that there was leave on record, it would not have decided the dispute the way it had done: by dismissing it. In our considered view, this was not a case where the learned Judge had failed to apply the law correctly, which fell in the domain of an appeal, and in which case the court was functus officio, but it was a case where the learned Judge had not noticed that the appellant had sought, and obtained, leave and that such leave was on the record. The appellant was not complaining during the application for review, that the decision was erroneous on merits, but that the learned Judge had, by error and omission, failed to notice the fact that the appellant had obtained leave before filing the claim against the respondent.On the basis of National Bank of Kenya Limited -vs- Ndungu Njau (Supra) and Pancras T. Swai -vs- Kenya Breweries Limited [2014] eKLR, we find that the appellant was entitled to the review of the decision that had dismissed his suit. There was enough material placed before the learned Judge to show that there was need to correct an apparent error or omission that had occurred.
19.These are the reasons why we allow this appeal with costs to the appellant. We set aside the decision dated 14th June 2019 by the learned Judge. In its place, there will be an order allowing the application dated 23rd November 2018 with costs to the appellant.
DATED AND DELIVERED AT NAIROBI THIS 20 TH DAY OF DECEMBER 2024. S. GATEMBU KAIRU, FCIARB ……………………………… .. JUDGE OF APPEAL A. O. MUCHELULE ………… ..…….……………….. JUDGE OF APPEAL W. KORIR ………………………………… .. JUDGE OF APPEAL I certify that this is a true copy of the original.Signed DEPUTY REGISTRAR .