[2018] KEELRC 1616 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT

AT KISUMU

CAUSE NO. 15 OF 2015

(Before Hon. Lady Justice Maureen Onyango)

DOUGLAS WANJALA MAKOKHA & 35 OTHERS............CLAIMANT

VERSUS

JIANGXI ZHONGMEI ENGINEERING

CONSTRUCTION COMPANY LIMITED.........................RESPONDENT

JUDGMENT

Introduction

The claimants are all current or former employees of the respondent, a construction company engaged by the Government of Kenya to rehabilitate the Webuye-Kitale Road. According to the claim dated 19th January and filed on 20th January 2015, the claimants seek payment of underpayments, lost hours, house allowance, NSSF/NHIF/PAYE and annual leave. The specific claims of each of the 36 claimants are as set out on the claim. The claimants further seek costs and interest.

The respondent filed a defence on 23rd February 2016 denying the allegations in the claim. The respondent avers that all the claimants were paid all their dues and are not owed any arrears of house allowance, lost hours or annual leave. The respondent prays that the claim be dismissed.

The claimants filed a reply to the defence on 5th May 2015 joining issues with the respondents.

On 5th October 2016 the case was with the consent of parties referred to the County Labour Officer Trans Nzoia to investigate and prepare a report. The claimants thereafter filed written submissions in respect of the report. This judgment is based on the pleadings, the County Labour Officer’s report dated 20th February 2017 and filed on 24th February 2017 and the written submissions of the claimants dated 16th May 2017.

No submissions were filed on behalf of the respondent.

The findings in the County Labour Officer’s report are reproduced below –

“Following the court’s directive that the above matter be investigated and report submitted to the court.

The following are the findings of each employee: -

1. David Muchiri

David Muchiri was engaged in March 2014 and after working for four (4) months he left employment in July 2015.

2. Geoffrey K. Korir

Geoffrey was engaged in July 2013 and left in October 2014 and was paid his dues and he voluntarily signed for the same.

3. Erick M. Sammy

He was engaged as Grader Operator on July 2014 and left on 5th March 2015. He was paid his final dues amounting to Kshs.65,300/= which he acknowledged and signed for the receipt.

4. Anthony Kaloki Musyoka

Mr. Musyoka got employed in August 2013 as a Grader operator and left on 5th March 2015. He was paid Kshs.35,200/= as full and final settlement of his dues which he duly signed and proclaimed he had no more claims.

5. Charles K. Ruto

Mr. Ruto was employed as a mechanic in January 2015 and was summarily dismissed for gross misconduct being theft by servant on 5th March 2015 and paid all wages due.

6. David Simiyu Makokha

Mr. Simiyu was employed as a welder earning Kshs.16,000/= per month and his services were terminated on 16th May 2016. He was paid terminal dues as follows: -

- Accrued leave - 9,692. 00

- Service gratuity - 25,846. 00

Total 35,538. 00

He confirmed receipt of the dues as full and final settlement

7. Richard Ikamar Orimodi

Richard Orimodi was employed in December 2012 as shovel operator and left in august 2016. He was paid his terminal benefits as follows:–

- Wages - 21,000. 00

- Leave - 5,140. 00

- Service gratuity - 31,984. 00

Total 35,538. 00

Upon receipt of the above shown amount, he acknowledged by signing the payment slip confirming that he had no further claims against his employer.

8. Lazarus Juma Awuor

Lazarus Juma was employed as a general worker in July 2013 and left through resignation on 11th March 2016. He was paid his full and final terminal dues which consisted of: -

- Wages - 6,800. 00

- Leave - 10,984. 00

- Service gratuity - 863. 00

Total 18,647. 00

He acknowledged receipt.

9. Bonface Kimeu

Bonface Kimeu was employed on October 2013 as a loader operator earning Kshs.19,600/= and left on 10th January 2015. He was paid his full and final dues as follows: -

- Salary - 27,566. 00

- One month’s wage

- In lieu of notice - 19,600. 00

Total 47,166. 00

He acknowledged receipt.

10. Benson Nyapara

Mr. Nyapara was engaged as a roller operator in January 2013 and left in January 2016. He was paid his terminal dues amounting to Kshs.56,000/=, which he duly acknowledged.

11. Kizito Namusenda Musawa

Mr. Kizito Namusenda was employed as excavator operator in December 2012 and left on 18th November 2014. He was paid his terminal dues of Kshs.16,550/= which he acknowledged by signing the payment slip.

The following claimants are still working for the company, therefore it is premature for them to lodge a claim against the company –

1. Daniel Nyakweba Mogire

2. Thephilus Kisisyo Munyasia

3. Patrick Masika

4. Fredrick Silikha

5. Fredrick Joshua Teka

6. Allan Kemoi Maiyo

7. John Wekesa Wabomba

8. Douglas Wanjala Makokha

9. Saidi Juma

10. Nathaniel Njagi

11. Justus Amakero

12. Vincent Wasike Walekhwa

13. Sositine Wanjala Buyera

14. Rashid Shikuku

15. Metrine Nasimiyu Nguti

16. Silas Okech

17. Charles Musera

NOTES

Note I – Underpayment

The underpayments arrears as demanded by claimants is outrageous in the sense that the counsel calculated it basing on hourly rate which is not provided for in the Building and Construction Industry Wages Order. This order provides that employees in the category of drivers, artisans, general workers be paid on daily rate only. There is no provision for payment of wages on hourly rate.

Note II – Lost hours

Lost hours cannot be explained but it is assumed to be the overtime. This claim is not valid in the sense that all employees who worked extra hours were paid overtime and this can be validated through the records presented by the counsel to the court.

Note III – N.S.S.F AND N.H.I.F Refunds

N.S.S.F and N.H.I.F are statutory deductions which claimants cannot ask for refunds from employer. If the claimants have any sufficient reason to believe these deductions were not remitted then they can contact these organisations.

Note IV – House Allowance

This issue can be considered after verification of records. Where it is found that some of these claimants were not paid house allowance, then the claimants can claim for the same to a maximum of 12 months.

In the claimants’ submissions the prayers for house allowance, NSSF, NHIF and PAYE have been abandoned leaving only claims in respect of underpayments, lost hours/overtime and annual leave for determination. It is submitted as follows in respect thereof.

It is submitted that the claimants were paid bellow the statutory minimum rates of pay applicable between 2012 and 2014. It is further submitted that the respondent also flouted an agreement reached in a Return to Work Formula dated 13th September 2014 witnessed by the County Labour Officer, Bungoma.

On Overtime

It is submitted that claimants worked for 12 hours daily from 7. 00 a.m. to 7. 00 p.m. thus putting in four hours of overtime daily which they were not compensated for. That in addition they worked for 7 days without a rest day hence the claim for extra hours and rest days.

On annual leave it is submitted that all the claimants were not allowed to go on annual leave and were not paid in lieu thereof.

The final claims for each of the claimants are as follows -

NAME UNDERPAYMENTS LOST HOURS/OVERTIME ANNUAL LEAVE TOTAL

1. Fredrick Silikha 566,800. 00 168,000. 00

734,800. 00

2. David Muchiri 171,600. 00 147,000. 00

318,600. 00

3. Geoffrey K. Korir 356,400. 00 37,800. 00

394,200. 00

4. Daniel Nyakweba Mogire 286,000. 00 231,000. 00 42,000. 00 559,000. 00

5. Thephilus Kisisyo Munyasia 97,200. 00 189,000. 00

286,200. 00

6. Kenneth Wanjogu 171,600. 00 273,000. 00 42,000. 00 486,600. 00

7. Patrick Masika 468,000. 00 399,000. 00 42,000. 00 909,000. 00

8. Fredrick Joshua Teka 454,800. 00 30,720. 00 42,000. 00 527,520. 00

9. Erick Summy 86,400. 00 168,000. 00 42,000. 00 296,400. 00

10. Douglas K. Rotick 304,560. 00 315,000. 00 42,000. 00 661,560. 00

11. Allan Kemboi Mayo 346,320. 00 273,000. 00 42,000. 00 661,320. 00

12. John Wekesa Wabomba 530,400. 00 420,000. 00 42,000. 00 992,400. 00

13. Douglas Wanjala Makokha 241,200. 00 210,000. 00

451,200. 00

14. Bonface Kimeu 419,400. 00 273,000. 00 42,000. 00 734,400. 00

15. Saidi Juma 379,440. 00 189,000. 00 37,800. 00 606,240. 00

16. Nathaniel Njagi 284,400. 00 336,000. 00 42,000. 00 662,400. 00

17. Anthony Kaloki Musyoka 428,400. 00 336,000. 00 42,000. 00 806,400. 00

18. Justus Amakero 418,200. 00 462,000. 00 42,000. 00 922,200. 00

19. Enock K. Rotich 228,991. 00 336,000. 00 42,000. 00 606,991. 00

20. Vincent Wasike Walekhwa 729,600. 00 462,000. 00 42,000. 00 1,233,600. 00

21. Sositine Wanjala Buyera 181,120. 00 420,000. 00 42,000. 00 643,120. 00

22. Lazarus Ojwang Awuor 181,120. 00 420,000. 00 42,000. 00 643,120. 00

23. Rashid Shikuku 249,600. 00 252,000. 00 42,000. 00 543,600. 00

24. Ruto Charles Kipyegon 285,600. 00 210,000. 00

495,600. 00

25. Caleb Sasaka 604,800. 00 504,000. 00 84,000. 00 1,192,800. 00

26. David Simiyu 360,000. 00 294,000. 00 42,000. 00 696,000. 00

27. Nganga Isaac Njure 403,600. 00 294,000. 00 42,000. 00 739,600. 00

28. Metrine Nasimiyu Nguti 856,934. 00 441,378. 00 42,866. 00 1,341,178. 00

29. Millicent Musyoka Sabwami 443,424. 00 354,312. 00 50,616. 00 848,352. 00

30. Richard Ikamar Orimodi 609,600. 00 546,000. 00 84,000. 00 1,239,600. 00

31. Harrison Wachira 336,000. 00 294,000. 00 42,000. 00 672,000. 00

32. Silas Okech 110,400. 00 84,000. 00

194,400. 00

33. Charles Musera 598,560. 00 399,000. 00 42,000. 00 1,039,560. 00

34. Kizito Namusenda Musava 566,400. 00 504,000. 00 84,000. 00 1,154,400. 00

35. John Njagi Mwangi 266,400. 00 210,000. 00

476,400. 00

36. Benson O. Nyapara 583,200. 00 462,000. 00 42,000. 00 1,087,200. 00

The claimants relied on the following decisions –

1. Evans Katiezo Aligulah -v- Eldomatt Wholesale and Supermarket Limited [2016] eKLR.

2. John Rioba Maugo -v- Riley Falcon Security Services Limited [2016] eKLR.

3. Kenya Guards and Allied Workers Union -v- Lavington Security Limited [2013] eKLR.

Determination

I have carefully considered the pleadings, the documents filed therewith, the County Labour Officer’s report and the submissions filed on behalf of the claimants. It is not in dispute that all the claimants worked for the respondent at one time or other.

The issues for determination are therefore whether or not the claimants were underpaid and if they are owed any overtime and/or annual leave by the respondent.

1. Underpayments

In the claim it is stated that the claimants worked in different capacities as operators, mechanics, machine attendants, artisans, technicians and one as secretary. However in the County Labour Officer’s report, he states that the claimants were engaged as follows–

NAME ID TRADE STARTED TIME ENDED BEFORE RATE CURRENT RATE STATUS

1. Fredrick Silikha 3968339 Roller Operator 03/2014

560 13,520 Working

2. David Muchiri 30544861 EX Operator 03/2014 03/2014 660 19,474 30544861

3. Geoffrey K. Korir 28161713 Operator 07/2013 10/2014 360 9,500

4. Daniel Nyakweba Mogire 23612963 Roller Operator 12/2013

520 680 Working

5. Thephilus Kisisyo Munyasia 24993521 Grader Operator 04/2014

1,240 22,984 Working

6. Kenneth Wanjogu 22357837 Grader Operator 12/2013

1,240 21,216

7. Patrick Masika 7962680 Dozer Operator 06/2013

640 19,474 Working

8. Fredrick Joshua Teka 25429144 Paver 07/2013

800 1,240 Working

9. Erick Summy 25112734 Grader Operator 07/2014 10/2014 1,040 22,984

10. Douglas K. Rotich 30252820 Shovel Operator 09/2013 11/2014 360 9,000

11. Allan Kemoi Maiyo 27660054 Labourer 07/2013

360 9,000 Working

12. John Wekesa Wabomba 10672353 Labourer 09/2013

640 19,600 Working

13. Douglas Wanjala Makokha 22917366 Crane Driver 03/2013

640 19,474 Working

14. Bonface Kimeu 22748805 Dozer Operator 10/2013 11/2014 680 19,474

15. Saidi Juma 24162912 Shovel Operator 07/2013

360 9,300 Working

16. Nathaniel Njagi 12882293 Labourer 08/2013

1,240 170 Working

17. Anthony Kaloki Musyoka 29216611 Grader Operator attachment 08/2013 12/2014 680 19,474

18. Justus Amakero 6331784 Shovel Operator 01/2013

680 19,474 Working

19. Enock K. Rotich 23351507 Labourer 07/2013 11/2014 360 9,500

20. Vincent Wasike Walekhwa 12998194 Mechanic 01/2013

520 14,000 Working

21. Sositine Wanjala Buyera 30760391 Labourer 09/2013

360 6,500 Working

22. Lazarus Ojwang Awuor 20386952 Labourer 07/2013

320 6,400 Working

23. Rashid Shikuku 10531066 Distribute Op 11/2013

680 18,000 Working

24. Ruto Charles Kipyegon 13008204 Mechanic 01/2014 03/2015 600 13,580

25. Caleb Sasaka 20540743 P. Mechanic 02/2013 11/2014 600 19,474. 15

26. David Simiyu 11562293 Welder 09/2013

480 13,580

27. Nganga Isaac Njure 13458728 Mechanic 01/2014 12/2014 600 13,580

28. Metrine Nasimiyu Nguti 30489297 Lab Technician 01/2013

22,000 31,000 Working

29. Millicent Musyoka Sabwami 24926639 Secretary 12/2012 01/2015 420 12,000

30. Richard Ikamar Orimodi 11030972 Shovel Operator 12/2012 08/2016 680 19,474

31. Harrison Wachira 29393185 Excavator Operator 06/2013 10/2014 680 19,474

From the pleadings and documents filed on behalf of the claimants, it is not clear how the sums claimed for underpayments were arrived at. It is not even clear what rate was used to work out the underpayments.

The claimants state the rate at which they were paid but do not state the rate they allege they were supposed to be paid. According to the Regulation of Wages (General) Order 2013, the hourly rates range from Kshs.48. 85 for general labourer to Kshs.89. 55 for ungraded artisan and Kshs.175. 15 for grade 1 Artisan.

According to the documents in the claim it is not possible to tell what rate was used to pay each of the claimants. It is therefore not possible to determine whether or not any of the claimants was underpaid, based on the documents on record. This claim must therefore fail for want of proof. The prayer for underpayments is accordingly dismissed on grounds that it has not been proved.

2. Overtime/Lost Hours

The claimants allege that they worked 12 hours each day for 7 days without a break. I have checked the few time sheets that have been field in court together with the payslips. It is clear that the hours worked are clearly recorded. The time sheets even recorded the hours worked as normal overtime paid at 1. 5 hourly rates and overtime for public holidays and rest days paid at double (2 times) the normal hourly rates. The same is also reflected in the payslips. This means that all overtime worked was recorded and paid and the same is reflected in the time sheets and payslips.

The claim for overtime/lost hours accordingly fails and is dismissed.

3. Annual leave

The respondent did not deny that it did not pay the claimants annual leave. Section 28 of the Employment Act provides for payment of annual leave for any employee who has worked for a minimum of two months. None of the claimants worked for less than two months. Each of them is therefore entitled to annual leave at the rate of 1. 75 days for each month worked.

The respondent is directed to compute and pay the claimants all leave due from date of recruitment to date of either leaving employment or to date of filing suit being December 2014.

Conclusion

In conclusion judgment is entered for the claimants against the respondent in respect of annual leave only, the claims for underpayments and lost hours/overtime having been dismissed for want of proof.

The respondent will pay costs of the suit at half rate on the lower scale as the bulk of the claim has been dismissed and also taking into account that the case was determined on pleadings and documents without calling evidence.

DATED AND SIGNED AT NAIROBI ON THIS 4TH DAY OF JUNE 2018

MAUREEN ONYANGO

JUDGE

DATED AND DELIVERED AT KISUMU ON THIS 5TH DAY OF JULY 2018

MATHEWS NDERI NDUMA

JUDGE