[2018] KEELRC 510 (KLR)
The court found that while the right to non-discrimination and respect for dignity of litigants is fundamental, the Claimants failed to provide any material evidence to support their allegations of a 17-30% wage increase for other staff. The supporting affidavit contained only unsubstantiated assertions, and no...
Source-derived case information.
- Citation
- [2018] KEELRC 510 (KLR)
- Parties
- Applicant: Joseph Muhoro Murage & 7 Others; Respondent: The Board of Management St. Augustine Gikondi Boys Secondary School
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Cause 344 of 2017
- Procedural Posture
- Employment Cause / Ruling on Interlocutory Application
- Outcome
- application dismissed with costs
- Judges
- AN Makau
- Legal Topics
- Unfair Labour Practice, Discrimination, Injunctive Relief, Wage Increase, Burden of Proof
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Muhoro Murage & 7 Others
Applicant
The Board of Management St. Augustine Gikondi Boys Secondary School
Respondent
Procedural Posture
Employment Cause / Ruling on Interlocutory Application
Legal Issues
- 1 Whether the Respondent engaged in discriminatory labour practices by excluding the Claimants from a wage increase.
- 2 Whether the Claimants are entitled to injunctive or other relief for alleged discrimination.
Ratio Decidendi
The court found that while the right to non-discrimination and respect for dignity of litigants is fundamental, the Claimants failed to provide any material evidence to support their allegations of a 17-30% wage increase for other staff. The supporting affidavit contained only unsubstantiated assertions, and no documentary proof such as letters or payslips was presented. The court held that the threshold for granting the injunctive or similar relief sought was not met, and therefore dismissed the application with costs to the Respondent.
Court Disposition
application dismissed with costs
Orders
- The Claimants' application dated 11th September 2018 is dismissed with costs to the Respondent.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT & LABOUR RELATIONS COURT OF KENYA
AT NYERI
CAUSE NO. 344 OF 2017
JOSEPH MUHORO MURAGE &7 OTHERS.......CLAIMANT/APPLICANTS
VERSUS
THE BOARD OF MANAGEMENT ST. AUGUSTINE
GIKONDI BOYS SECONDARY SCHOOL.....….…………...…RESPONDENT
RULING
1. The Notice of Motion application before me is the one dated 11th September 2018 and it seeks various orders against the Respondent for alleged unfair labour practice. The Claimants assert that the Respondent has effected a 17%-30% increase in salary for all non-teaching BOM Staff excluding the Claimants so as to coerce them to withdraw the suit. The Claimants’ motion is supported by the annexed affidavit of Peter Waitara Kimani the 4th Claimant which reiterates the same assertions. He avers that the Respondent has engaged in discriminatory practice by offering a wage increase to the other staff backdated to January 2018 and that letters to this effect were issued.
2. The Respondent is opposed and filed grounds of opposition in which it asserts that the application is incurably defective and merely speculative and brought in bad faith. The Respondent seeks the dismissal of the said application with costs.
3. The application was urged by Mr. Ng’arua for the Claimants who submitted that the motion seeks the orders of the court to compel the Respondent to show cause why orders should not issue against it for the discriminative action in effecting a wage increase of between 17-30% for other staff and excluding the Claimants herein. Counsel argues that it is the right of any person who seeks relief from court not to be discriminated against for articulating his or her claim and that the Claimants have a right to expect their dignity to be respected. They should not be discriminated against or punished for coming to court. It was submitted that the Respondent had even attempted to meet the Claimants without their lawyer to persuade them to withdraw the suit in lieu of the wage increase. The Claimants urge that the motion be granted.
4. The Respondent opposes the grant of the orders sought and asserts that the Claimants motion is based on falsehoods, is speculative and should be dismissed. The Respondent argues that none of the employees have received a wage increase and that nothing would have been easier for the Claimants to avail the documents to prove the allegations. The Respondent thus urges the dismissal of the motion with costs.
5. The motion is one that seeks remedies akin to injunctive orders as the action sought to be enforced against the Respondent is one to show cause for the alleged discriminatory treatment of the Claimants. It is true as Mr. Ng’arua submits that the dignity of any party before court must be respected. There should not be any discrimination meted out against a party because of approaching the court for remedy. However, the motion before me falls short of the standard required of such a motion. The Claimants have not placed before me any material to show the 17-30% pay hike implemented from January 2018 in respect of other staff. The affidavit sworn in support of the motion is just mere allegations with no more. Nothing would have been easier than to present a copy of the letter effecting the increase for the other staff or contrast payslips (with names redacted if need be) to show the increments. As the motion does not meet the threshold for grant of the remedy sought I will dismiss it with costs to the Respondent.
It is so ordered.
Dated and delivered at Nyeri this 1st day of November 2018
Nzioki wa Makau
JUDGE