Lawyer petitions Judicial Service Commission over judge’s handling of case

Nairobi, Kenya: A Nairobi lawyer has written to the Judicial Service Commission (JSC) complaining about the handling of his case by an industrial court judge.

Vincent Lempaa Suyianka claims that the Judge, Maureen Onyango, denied him fair hearing in a suit he filed against his former employer, Kenya Broadcasting Corporation (KBC).

Until July 6, 2012, Lempaa worked as a news reporter with the broadcaster. His employment was however terminated following a labour dispute that led to a workers’ strike in February 2012.

In September 2012, the lawyer filed a suit against the corporation at the industrial court, accusing it of wrongful dismissal. He named KBC, its Managing Director Waithaka Waihenya and Chief Editor Vitalis Musebe as respondents.

Rule four of the Industrial Court (Procedure) Rules 2010, states that a party wishing to refer a dispute to the industrial court under any written law must file a statement of claim.

So in compliance with the law, Lempaa filed a memorandum of claim, which was duly stamped at the court registry and he was issued with a receipt for Sh200 filing fees.

Along with that memorandum, the lawyer filed another application under a certificate of urgency, seeking orders to have KBC compelled to give him some documents to support his case.

He sought to have KBC ordered to give him a letter written to them by the then Information and Communications PS on the labour issues.

Recover cash

Lempaa claimed the letter had directed the corporation to stop paying employees, contrary to the KBC code of regulations. He said the letter directed the corporation to stop discriminating other employees in the payments and to recover cash that had already been paid to others in contravention of the regulations.

Further the lawyer asked that KBC be ordered to give him the minutes of a meeting held on February 22, 2012 when the PS directed the corporation to stop any discriminations and to pay employees in accordance with their new job descriptions. He also wanted minutes of a meeting held on March 5, 2012 between the PS, labour official and KBC workers representatives where a return-to-work formula was agreed on as a way of ending the strike.

The application went before Lady Justice Onyango and was heard on October 11, 2012. Lempaa represented himself while KBC and the director were represented by a Ms Khisa.

Lempaa told the court that he wanted the documents produced so that he could use them in arguing his case. He said though he had indicated earlier that he intended to file the memorandum itself, he had already filed it and it was already in the court file.

Musebe argued that no substantive orders had been sought against him and that he had been wrongly enjoined in the application. Musebe claimed the allegations against him were in bad faith and asked the court to dismiss the case.

Khisa argued that Lempaa was asking for documents whose content he was already aware of and hence should produce his own copies. Further the corporation claimed that the industrial court had no legal mandate to hear the case as it was a constitutional matter that should be heard in a constitutional court.

The corporation said the application was an abuse of court process. Lempaa had not exhausted other mechanisms of resolving the dispute as provided under the KBC code of regulations.

Ms Khisa submitted that Lempaa had already told the court that he had not filed the memorandum of claim as required by law hence his application for the papers could not be issued in a vacuum.

But the judge interrupted her, asking why she was making the allegation, yet she could see the memorandum in the court file. Ms Khisa then conceded and added, “I leave it to the court to decide”

Constitutional matter

In her ruling on November 15, 2012, Justice Onyango held that the court had jurisdiction to determine the issues raised in Lempaa’s application as they were on employments relations. She held that the court could deal with the constitutional matter.

Two times in the ruling the judge erroneously referred to Musebe as the KBC Managing Director.

The judge then quoted the industrial court rules requiring one to file a statement of claim. She noted that according to that rule, the statement was mandatory.

The judge ruled that Lempaa had not filed memorandum of claim.

“The application before the court is not anchored on a case and cannot exist on its own. The applicant has stated in the certificate of urgency that he is ‘yet to file’ a claim and need the information to prove his case. A claim therefore does not exist,” she ruled.

Justice Onyango ruled that giving the orders asked by Lempaa would amount to speculations. She ruled that if Lempaa wished to make the application, he first had to file a valid claim and then bring the application within that claim.

The judge said the lawyer did not even need the documents he was requesting because he was already aware of what the documents contained and could file the claim without them. With that she dismissed Lempaa’s application, prompting him to file another claim.

The lawyer is now accusing the judge before the JSC of having denied him the opportunity in court to address her on the memorandum that was already on record.

He says the judge noted during the hearing that the memorandum was in the court file and stopped him from submitting on it only for her to rule that it did not exist.

The lawyer now wants the JSC to order the industrial court to refund him the Sh200 he paid as filing fees.

“If it’s true I had not filed the memorandum, the court should refund me the filing fees as I have the receipt for it,” he said, adding that nowhere in his certificate of urgency did he state that he was yet to file the claim.

The writer is a court reporter.

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