[2014] KEELRC 1056 (KLR)

REPUBLIC OF KENYA

IN THE INDUSTRIAL COURT OF KENYA AT NAIROBI

CAUSE NO 26 OF 2013

DONALD ORICHO.............................................................................CLAIMANT

VS

THE NATIONAL VISION PARTY..............................................1ST RESPONDENT

NICHOLAS K. BIWOTT.........................................................2ND RESPONDENT

BENTER AKINYI OPANDE......................................................3RD RESPONDENT

AWARD

Introduction

1. By a Statement of Claim dated 9th January 2013 and filed in Court on even date the Claimant sued the Respondents for failure to pay his salary. The 1st and 2nd Respondents filed a joint Statement of Response dated 4th February 2013 and the 3rd Respondent filed her own Memorandum of Defence dated 8th November 2013. The Claimant and the 3rd Respondent testified on their own behalf while Allan Juma Masika testified on behalf of the 1st and 2nd Respondents. All the parties filed written submissions.

The Claimant's Case

2. By letter dated 23rd January 2012, the Claimant was employed to manage the 1st Respondent's Nairobi County Office situated at Bharvesh Centre, Murang'a Road, Nairobi. He was engaged on a five year contract at a salary of Kshs. 18,000 per month. However, save for Kshs. 20,000 paid to the Claimant by the 2nd Respondent, the Claimant was not paid his salary as agreed.

3. The Claimant claims the following:

Kshs. 188,000 being salary arrears as at 31st October 2012

Pay for the remainder of his contract

Costs

The 1st and 2nd Respondent's Case

4. In their Statement of Response, the 1st and 2nd Respondents deny the existence of an employment relationship between the Claimant and the 1st Respondent. Further, the 1st and 2nd Respondents deny the existence of an office known as Nairobi County Office where the Claimant claims to have been stationed. They also disown the Claimant's letter of appointment dated 23rd January 2012.

The 3rd Respondent's Case

5. In her Memorandum of Defence, the 3rd Respondent states that she is the National Vice Chairman of the 1st Respondent. She further states that pursuant to the Constitution of Kenya 2010, the 1st Respondent appointed ten (10) officials in over twenty four (24) counties, in an acting capacity. The 3rd Respondent was thus appointed acting Chairman for Nairobi County in January 2011, a position she held until the election of Allan Masika on 15th December 2012.

6. The 3rd Respondent goes on to state that in compliance with the Political Parties Act, the 1st Respondent opened offices in more than 24 counties, including an office for Nairobi County situated at Bharvesh Centre along Murang'a Road, Nairobi. In a meeting held on 7th February 2012, all interim chairmen of the 1st Respondent were given authority to recruit minimal staff to manage and maintain the party offices.

7. It was within this context that the 3rd Respondent in her capacity as interim Chairman for Nairobi County recruited the Claimant on 23rd January 2012. The 3rd Respondent agrees with the Claimant's claim that save for Kshs. 20,000 paid to the Claimant by the 2nd Respondent, no further payment was made. In her Memorandum of Defence, she sets out her attempts to have the Claimant's claim settled to no avail.

Findings and Determination

8. The issues pending determination before this Court are as follows:

Was there a valid employment relationship between the Claimant and the 1st Respondent?

Is the Claimant entitled to the reliefs sought?

Employment Relationship

9. The Claimant's claim is based on a letter of appointment dated 23rd January 2012 which states inter alia:

“We are writing to inform you that the National Vision Party (N.V.P) has appointed you, on contract for 5 years with effect from 1st Feb 2012 up to 31st Jan 2017 at the National Vision Party Nairobi county office.

Please note that your responsibilities during your 5 year contract will include among others: Managing the county office on a day to day basis and vigorous recruitment and retention of members into N.V.P membership register.

The salary attached to this contract shall be Kshs. 18,000 per month.Any taxes arising from this salary shall be your responsibility. You will be expected to work under the supervision of the county chairperson of the party and any other elected national officials if need may arise.

Further note that the contract can be terminated by either party giving a one month notice or payment of two months salary in lieu of notice.

Yours faithfully

Nairobi County Chairperson”

10. The 3rd Respondent admits being the author of this letter but the 1st and 2nd Respondents state that the 3rd Respondent had no authority to issue such a letter. It is the 1st and 2nd Respondent's case that the authority to hire employees was vested in the National Executive Council of the 1st Respondent and not any party official.

11. In this regard, the 1st and 2nd Respondents took issue with the date appearing on the letter of appointment being 23rd January 2012 and the date of the special meeting of the National Executive Council being 7th February 2012 which the 3rd Respondent relied on as authorisation to employ the Claimant. Explanations offered by the Claimant on the apparent discrepancy were not useful to the Court.

12. However, in determining whether there exists an employment relationship between a claimant and a respondent, the Court is to be guided by the question whether in the mind of a reasonable man, the person offering employment can, in the ordinary course of business, commit the organisation they represent.

13. The internal operations of an organisation to which a claimant has no access cannot be used to deny the existence of an employment relationship to the detriment of a claimant. In the case of Michael Mwalo Vs Board of Trustees National Social Security Fund (Cause No 1093 of 2012)this Court held that an employee dealing with a senior official of an organisation is not expected to go into the corporate boardroom to confirm whether the official in fact has authority to do what he seeks to do.

14. It is not in contest that the 3rd Respondent was a very senior official of the 1st Respondent and the Claimant had no reason to doubt the authenticity of a letter of appointment issued by her. If the 3rd Respondent exceeded her powers, recourse does not lie against the Claimant but against the 3rd Respondent. I therefore find that there indeed existed a valid employment relationship between the Claimant and the 1st Respondent upon which the Claimant can lay a claim.

Reliefs

15. The Claimant seeks salary arrears for 7 months less Kshs. 20,000 paid in cash by the 2nd Respondent. From the testimony of Allan Juma Masika which was confirmed by the 3rd Respondent, the 1st Respondent's Nairobi County office had a bank account but no money was deposited therein. The 3rd Respondent also testified that it was usual for the 2nd Respondent to make payments on behalf of the 1st Respondent in cash. In the absence of any evidence of any further payments made to the Claimant, I award him the sum of Kshs. 106,000 being salary arrears for 7 months less Kshs. 20,000 paid to him by the 2nd Respondent.

16. The Claimant also claims pay for the remainder of his contract. The Court was however told that the 1st Respondent's Nairobi County office where the Claimant was working, was closed in December 2012. It therefore follows that Claimant did not work for the 1st Respondent beyond December 2012. Additionally, the prayer for salary for the remainder of the contract falls within the province of an order for specific performance which is to be made in very exceptional circumstances which have not been made out in this case. The only award I will make on this limb therefore is the Claimant's salary up to December 2012 when the office was closed.

17. Ultimately, I make an award in favour of the Claimant as follows:

a) Salary for February-August 2012 less amount paid................Kshs. 106,000

b) Salary for September-December 2012. .....................................Kshs. 72,000

Total...............................................................................................Kshs. 178,000

17. I award the costs of this case to the Claimant. The award amount will attract interest at court rates from the date of the award until payment in full. From the evidence on record, it seems to me that the officials of the 1st Respondent, including the 2nd and 3rd Respondents ran the affairs of the 1st Respondent as a personal venture. Moreover, no objection was made to joiner of the 2nd and 3rd Respondents in this case and the award is therefore made against the 1st , 2nd and 3rd Respondents jointly and severally.

Orders accordingly.

DATED SIGNED AND DELIVERED IN OPEN COURT AT NAIROBI THIS 17TH DAY OF JUNE 2014

LINNET NDOLO

JUDGE

Appearance:

Mr. Oduor for the Claimant

Mr. Wachira for the 1st and 2nd Respondent

Ms. Benter Akinyi Opande (3rd Respondent in person)