Case ID:175555

Bwana Mohamed Bwana v Registered Trustees Kenya Ports Authority Pension Scheme [2021] eKLR

Case Metadata

Case Number:

Environment and Land Case 8 of 2020 (Formerly Civil Suit 79 of 2019)

Parties:

Bwana Mohamed Bwana v Registered Trustees Kenya Ports Authority Pension Scheme

Date Delivered:

13 May 2021

Case Class:

Civil

Court:

Environment and Land Court at Mombasa

Case Action:

Ruling

Judge(s):

Dorah O. Chepkwony

Citation:

Bwana Mohamed Bwana v Registered Trustees Kenya Ports Authority Pension Scheme [2021] eKLR

Court Division:

Environment and Land

County:

Mombasa

Case Outcome:

Application dismissed

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

ELC NO.88 OF 2020

FORMERLY CIVIL SUIT NO. 79 OF 2019

BWANA MOHAMED BWANA.................................................................PLAINTIFF

VERSUS

THE REGISTERED TRUSTEES

KENYA PORTS AUTHORITY PENSION SCHEME........................

DEFENDANT

RULING

1. By way of

Notice of Motion

application dated

4

th

March, 2020

the Applicant seeks the following Orders: -

1. The Honourable Court be pleased to vary and set aside that part of its ruling transferring the suit to the Environment & Land Court for hearing and determination and in its place substitute it with an order striking out the suit for lack of jurisdiction.

2. The costs of this application and the struck out suit be awarded to the Defendant.

2. The

Notice of Motion

is supported by an

Affidavit

sworn on

4

th

March, 2020

by

Stephen Kyandih

, the Defendant’s Scheme Secretary.

3. The

Notice of Motion

Application is premised on the grounds that: -

1. The Defendant’s Notice of Motion dated 9

th

October 2019 sought to strike out the Plaintiff’s suit on two grounds being;

(a) lack of jurisdiction over land matters; and

(b) lack of jurisdiction over disputes between a pension scheme and its members.

2. The Honourable Court, in its ruling delivered on 20

th

February 2020, properly captured those as the two grounds upon which the Defendant’s objection was based.

3. However, the Honourable Court inadvertently considered the first ground only. It never considered the second ground at all.

4. Under the first ground, the Honourable Court held that it could transfer the matter to the Environmental & Land Court, which it did.

5. However, under the second ground, if it had been considered and upheld, the court would find that even the Environment & Land Court would not have jurisdiction to hear and determine a dispute between a pension scheme and its members.

6. The failure to consider the second ground has therefore led the court to transfer a matter to a court which in fact lacks jurisdiction to hear the matter. It has also denied the Defendant a right of appeal since no decision has been made on that point.

7. It is therefore necessary for the Honourable Court to consider the challenge based on section 46 & 48 of the Retirement Benefits Act No. 3 of 1997 and make a decision on it one way or the other.

8. It is in the interest of justice and in keeping with the rule of law that the jurisdictional challenge be addressed before the matter is referred to another court equally without jurisdiction.

4. The Plaintiff has opposed the said Application vide the

Replying Affidavit

sworn on

15

th

January, 2021

and a

Preliminary Objection

on an even dated

.

5. In the

Preliminary Objection

, the Plaintiff/Respondent states that this

court lacks jurisdiction to entertain the instant application in view of the

Notice of Appeal

lodged by the Applicant on

3

rd

March, 2020

and further that there exists an Appeal against this court’s Ruling being

Court of Appeal

Civil Appeal No.50 of 2020, The Registered Trustees, Kenya Ports Authority Pension Scheme –versus- Bwana Mohamed Bwana

wherein a

Record of Appeal

was filed on the

3

rd

August, 2020

.

6. The Plaintiff/Respondent maintain that this Court is

functus officio

having pronounced itself on the issue of transfer of this suit to the

Environment and Land Court

for hearing and determination vide its

Ruling

delivered on the

20

th

February, 2020

.

Directions of the Court

7. The parties took directions on disposal of the application by way of written submissions which were dutifully filed. The Applicant filed its submissions on the

2

nd

March, 2021

while the Plaintiff/ Respondent filed his submissions on the

12

th

March,

2021

. Parties relied on those submissions in their entirety.

8. I have read through the submissions by both parties and found they replicate much on the grounds in support and opposition of the application as captured above. There is therefore no need to duplicate the same.

Analysis and determination

9. Having considered all the pleadings and written submissions by the parties, the issue that arises for determination is whether this Court has the jurisdiction to hear and determine the application as brought by the Defendant/Applicant.

10. The Applicant has brought this application seeking orders that this court varies the

Orders

it made on

20

th

February, 2020

transferring the suit to the

Environment & Land Court

and substitute it with an order striking out the suit in its entirety.

11. The Applicant has categorically stated in its submissions that this is not an application for review as it has not been brought under

Section 80

of the

Civil Procedure Act

and

Order 45

of the

Civil Procedure Rules.

The Applicant further acknowledges that there is pending an Appeal before the Court of Appeal on the

Ruling

as delivered on

20

th

February, 2020

.

12. It is the Applicant’s contention that this Court is being invited to deal with the jurisdictional question as was addressed in the

Ruling

of

20

th

February, 2020

, which had determined their application dated

9

th

October, 2019.

It is averred that the said application had raised two jurisdictional questions being that the court lacked jurisdiction to entertain a matter reserved for the ELC and that the High Court lacked jurisdiction over disputes between a pension scheme and its members.

13. However, the Applicants submitted that they are before this court for the reason that this court only answered one jurisdictional question raised, that is, that the matter was that of the

Environment & Land Court

but ignored the other issue raised on whether the High Court lacked jurisdiction over disputes between a pension scheme and its members.

14. The Plaintiff/Respondent on the other hand has taken a firm stand and submitted that this Court is

functus officio

having pronounced itself in a

Ruling

that is now the subject of Appeal, being

Court of Appeal

Civil Appeal No.50 of 2020, The Registered Trustees, Kenya Ports Authority Pension Scheme –vs- Bwana Mohamed Bwana

.

15. I have read through the

Ruling

dated the

20

th

February, 2020

, and reiterate that this Court found that the jurisdictional question as raised by the Defendant/Applicant relied on the wrong provisions of the law and thus their

Preliminary Objection

was defective and could not be upheld by this court. The Applicant therefore, cannot claim that one of their jurisdictional questions was not determined by this Court.

16. Nonetheless, this Court considered all the issues that came up and in the

Ruling

delivered on

20

th

February, 2020

found that it lacked jurisdiction for the reason that the matter being that of use and occupation of land, vested exclusive jurisdiction to the

Environment

and

Land Court

, and consequently the matter was transferred to the said court.

17. Be that as it may, the Applicants having filed an Appeal before the Court of Appeal against the

Ruling

of

20

th

February, 2020

and having acknowledged that the application dated

4

th

March, 2020

was unnecessary since they cannot appeal and seek review against the same Ruling under

Section 80

of the

Civil Procedure Act

and

Order 45

of the

Civil Procedure Rules

, I have no business to entertain the instant application.

18. Further, it is my view that having found that this Court had no jurisdiction over the matter, I cannot now proceed to consider whether the High Court has jurisdiction over the Applicant. The High Court ceased to preside over the matter and it is for the Applicant to think of whether the Environment and Land Court has jurisdiction over them. That is an issue the Environment and Land Court will address if at all the same will be raised before it. But as things stand, this Court has conclusively pronounced itself with regard to this matter. I choose not to say more on that aspect since its upon the Applicant’s Counsel to advice his client.

19. For the above reasons as explained above, I find no merit in the Applicant’s Application dated

4

th

March, 2020

and dismiss it in its entirety.

20. Costs to the Plaintiff/Respondent.

It is hereby so ordered.

DATED, SIGNED and DELIVERED VIRTUALLY at MOMBASA this 13

TH

day of MAY, 2021.

D. O. CHEPKWONY

JUDGE