[2024] KEELRC 793 (KLR)

Kenya Union of Comercial Food and Allied Workers v Kaagari South Farmers Cooperative Society Ltd (Cause E005 of 2023) [2024] KEELRC 793 (KLR) (12 April 2024) (Judgment)

Neutral citation: [2024] KEELRC 793 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Nairobi

Cause E005 of 2023

ON Makau, J

April 12, 2024

Between

Kenya Union of Comercial Food and Allied Workers

Claimant

and

Kaagari South Farmers Cooperative Society Ltd

Respondent

Judgment

1. By a Statement of Claim dated 10th March 2023, the Claimant sued the Respondent seeking the following reliefs on behalf of its nine members (hereinafter referred to as “the grievants”): -a.Pay the nine grievants Kshs. 1,635,037. 00 being eleven months’ unpaid salaries.b.The Respondent to remit statutory deductions for all the relevant institutions including Trade Union dues, NSSF, NHIF, PAYE among others.c.The Respondent be restrained from intimidating any employee herein on basis of the dispute.d.Respondent to pay the claimant costs of the suit plus interest at the Court rates in item I above.

2. The Respondent filed a Response to Claim dated 26th April 2023 contending that the parties had entered a payment agreement and hence this Court should allow for alternative dispute resolution. It averred that the difficulty to pay wages was caused by the Covid-19 pandemic and not mismanagement. It averred that the employees were 8 and not 9.

3. It further averred that the Claimant lacked the capacity to bring action on behalf of the grievants as the same was not allowed by law or the CBA. It therefore prayed that the claim be dismissed with costs and the real litigants be allowed to reach a payment plan with it.

4. The Claimant filed a reply to the Response contending that the list of unpaid employees originated from the Respondent and it bore its stamp. The list indicated the months and amount due. It averred that the Respondent ought to have filed a certificate of agreement between parties as proof of the alleged agreement to pay. It was averred that section 18b of the Employment Act provides for payment on monthly basis but the respondent did not comply.

5. It averred that the Respondent had alternative sources of income that could be used to pay salaries including rent from its building in Runyenjes town. It averred that the Respondent still sold coffee and paid farmers during the pandemic and hence the pandemic should not be an excuse. It averred that it had the capacity to sue on behalf of the grievants since there was a CBA in force between it and the respondent. Therefore, it prayed for the Claim to be allowed as prayed.

Factual background 6. The parties herein have a Collective Bargaining Agreement in force that was registered in this Court. The Respondent failed to pay salaries to the nine (9) grievants who are its employees for the period between March 2022 and January 2023. The amount due as at March 2022 was Kshs. 1,653,037. 00 and the same keeps on increasing. The employees were being subjected to a lot of financial embarrassment and mental torture by the Respondent’s breach of their rights to salary; and being denied access to essential services such as health care. As a result, the claimant reported to the Ministry of Labour on 6th October 2021 and the Cabinet Secretary appointed Ms. Lorraine Mburu of Embu Labour office as the Conciliator. However, the matter was not resolved hence the instant suit.

7. During the hearing herein the Claimant called one of the grievants Mr.Peter Kariuki Njeru to testify on behalf of the other grievants. He stated that he is a shop steward and factory manager of the Respondent. He basically adopted his written statement dated 10th March 2023 as evidence and produced as exhibits nine documents in the list dated 10th March 2023. In brief he stated that the grievants were claiming unpaid salaries for 11 months as at March 2023 and another 8 months up to the date of hearing. He therefore prayed for the salaries at the time of filing of suits and for the months thereafter, together with interest and costs of the suit.

8. The respondent did not call any witness during the trial but opted to file written submissions.

Submissions 9. The Claimant reiterated the contents of the statement of claim save for the submission that the matter involved 8 employees and the amount of salary outstanding as at the October 2023 was Kshs. 3,248,376. 00.

10. The Respondent on the other hand, submitted that the suit was instituted and prosecuted by an unqualified person, who is not gazetted to file and prosecute labour matters. It further submitted that the Claimant has no employment relationship with the Respondent, and it has no authority to prosecute the claim on behalf of the grievants.

Issues for determination and analysis 11. Having considered the pleadings, evidence and submissions, the issues which fall for determination by this Court are as follows:a.Whether the Claimant has the locus to file suit on behalf of the grievantsb.Whether the reliefs sought are merited

Locus to file suit on behalf of the grievants 12. The Respondent has questioned the Claimant’s capacity to bring this claim on behalf of the grievant contending that the claimant lacks the locus standi and authority to do so. The Claimant, on the other hand, argued that it had a CBA with the respondent and therefore it had the right to sue on behalf of the grievants.

13. I agree with the claimant that a Trade Union can bring suit on behalf of its member, and more so when there exists a Recognition Agreement and a CBA between the union and the employer. In this case, the respondent has not disputed the existence of a Recognition Agreement and CBA between it and the claimant, or the membership of the grievants to the claimant union. I gather support from the case of Kenya Union of Domestic Hotels Educational Institutions and Hospital Workers v Bai Hong Cheng [2021] eKLR where the Court held as follows:“16. It follows therefore that for a trade union to sue on behalf of its member(s) it does not need to have a Recognition Agreement with the employer; the only requirement is that the Grievant be a member of the trade union.”

Reliefs sought 14. The Claimant argued that the list of unpaid employees was prepared by the Respondent and bore its stamp. Further, the issue of salary arrears is not rebutted by evidence. CW1 testified on his behalf and that of 8 others and no objection or cross-examination on the salary arrears. Therefore, I find that the Claimant’s Claim was not disputed or opposed.

15. The claimant never amended its pleadings to align it with the evidence by CW1 whereby he prayed for salary up to the time he testified. Consequently, I will not extend this judgment beyond what is contained in the pleadings. However, the Respondent is duly cautioned against the failure to comply with the law since that will expose its officers to criminal sanction.

16. In conclusion, I enter judgement in favour of all the 9 grievants as prayed in the statement of Claim as follows: -a.Payment of Kshs 1, 635, 037 less statutory deductions.b.The respondent is further ordered to remit statutory deductions for all the relevant institutions including Trade Union dues, NSSF, NHIF, PAYE among others.c.The Respondent is hereby restrained from intimidating any employee herein on basis of the dispute herein.d.Respondent to pay the claimant costs of the suit plus interest at the Court rates in item (a) above.

DATED, SIGNED AND DELIVERED AT NYERI THIS 12TH DAY OF APRIL, 2024. ONESMUS N MAKAUJUDGEOrderThis judgment has been delivered to the parties via Teams video conferencing with their consent, having waived compliance with Rule 28 (3) of the ELRC Procedure Rules which requires that all judgments and rulings shall be dated, signed and delivered in the open court.ONESMUS N MAKAUJUDGE