[2003] KEELRC 4 (KLR)

IN THE INDUSTRIAL COURT OF KENYA

AT NAIROBI.

(Before: Charles P. Chemmuttut, J.,

J.M. Kilonzo & M.A. Warrakah, Members.)

CAUSE NO. 7 OF 2003.

KENYA UNION OF DOMESTIC, HOTELS,

EDUCATIONALINSTITUTIONS, HOSPITALS & ALLIED WORKERS...........Claimants.

v.

CHOGORIA P.C.E.A. HOSPITAL………...……...…………………………….Respondents.

Issue in Dispute:-

“Refusal to pay Retirement/Redundancy benefits to 37 employees” (hereinafter called the grievants) namely:-

1. Festus Mati Kiramata.

2. Godfrey Miriti Peter.

3. Evangeline Thigaa M’Raini.

4. Doris Kanyua Njagi.

5. Charles Nkonge Maiti.

6. Alison Kanini.

7. Festus Kithinji C. Muchiri.

8. Bernard Riungu M’Thambu,

9. Mugambi K. Gikabu.

10. Fredrick Miriti M’Muga.

11. Tiras Nyaga Chabari.

12. Elias Njeru Ngaruni.

13. Bernard Kaithungu.

14. Pauline Mukwanyaga Barine.

15. Margaret Kagige Nyaga.

16. Enid Mukwamugo Ireri.

17. Mercy Mukwanjeru Ireri.

18. Edith Cirindi.

19. Magdaline M. Njeru.

20. Eliphas Javan.

21. Humphrey Murungi.

22. Eunice David.

23. Harriet Njeri Miriti.

24. Enid Joy M. Francis.

25. Junius Mutembei Kiraithe.

26. Naftally Kathuuri Marete.

27. Joram D.N. Nabea.

28. Grace Kaari Njeru.

29. Dinah M. Njau.

30. Jane Ithima.

31. Nathaniel Chabari Rungika.

32. Fredrick Njagi Musa.

33. Solomon Njue Mukobwa.

34. Justin Mugo Nkabune.

35. Assenath K. Murungi.

36. Agnes Mukwaiti.

37. Kellen Kanyuru.

S.N. Mwari for the Claimants (hereinafter called the Union).

Gitonga Basilio, Advocate, of Messrs. Harun Gitonga & Basilio Gitonga, Advocates, for the Respondents (hereinafter called the Hospital).

A W A R D.

On 5th March, 2003, the Minister for Labour referred this dispute to the Court for consideration and determination under powers vested in him by Section 8 of the Trade Disputes Act, Cap.234, Laws of Kenya (which is henceforth referred to as the Act); and his reference, together with the statutory certificates from the Labour Commissioner and the Minister himself under

Section 14(9) (e) and (f) of the Act, were received by the Court on 7th March, 2003. Mr. Mwari for the Union submitted his main memorandum on 22nd May, 2003, and Mr. Basilio, the learned counsel for the Hospital, filed his reply statement thereto on 15th June, 2003. The dispute was heard on 25th July and 16th October, 2003, but the parties were given an opportunity to explore the possibility of any amicable settlement out of Court.

The parties met again to resolve the matter, and on 12th November, 2003, Mr. Mwari presented to the Court fresh tabulations of the grievants’ entitlements as indicated in Schedules “A” and “B”, composed of two groups, viz:-

Group I – Retirees:Schedule “A” : Schedule “B”: Total:

1. Godfrey Miriti PeterKshs.24,481. 50 Kshs.3,600. 00 Kshs.28,081. 50

2. Evangeline Thigaa M’Raini“ 50,368. 00 “ 4,200. 00 “ 54,568. 00

3. Charles Nkonge “ 8,591. 40 “ 5,440. 00 “ 14,031. 40

4. Alison Kanini“ 144,131. 50 “ 5,550. 00 “149,681. 50

5. Mugambi G. Gikabu“ 66,403. 00 “ 5,440. 00 “ 71,843. 00

6. Tiras Nyaga Chabari“ 288,028. 00 “ 5,550. 00 “293,578. 00

7. Elias Njeru Ngaruni“ 157,858. 00 “ 5,550. 00 “163,408. 00

8. Bernard Kaithungu“ 91,216. 90 “ 5,550. 00 “ 96,766. 90

9. Margaret Kagige Nyaga“ 49,959. 00 “ 4,800. 00 “ 54,759. 00

10. Enid Mukwamugo IreriKshs. 65,192. 00 Kshs.5,550. 00 Kshs.70,742. 00

11. Mercy Mukwanjeru Ireri“ 65,192. 00 “ 5,550. 00 “ 70,742. 00

12. Edith Cirindi Miriti“ 56,544. 00 “ 4,800. 00 “ 61,344. 00

13. Eliphas Javan“ 64,544. 00 “ 4,800. 00 “ 69,344. 00

14. Humprey Murungi“ 128,948. 00 “ 4,800. 00 “ 133,748. 00

15. Eunice David Igoki“ 96,804. 20 “ 4,800. 00 “ 101,604. 20

16. Harriet Njeri Miriti“ 59,933. 00 “ 4,800. 00 “ 64,733. 00

17. Enid Joy M. Francis“ 149,203. 00 “ 5,550. 00 “ 154,753. 00

18. Junius Mutembei Kiraithe“ 63,484. 00 “ 4,650. 00 “ 68,134. 00

19. Joram D.N. Nabea“ 20,488. 75 “ 4,800. 00 “ 25,288. 75

20. Grace Kaari Njeru“ 209,657. 70 “ 4,800. 00 “ 214,457. 70

21. Dinah M. Njau“ 36,919. 00 “ 4,800. 00 “ 41,719. 00

22. Nathaniel Chabari Rungika“ 25,806. 00 “ 3,600. 00 “ 29,406. 00

23. Justin Mugo Nkabune“ 26,919. 20 “ 3,600. 00 “ 30,519. 20

24. Assenath K. Murungi“ 231,220. 00 “ 4,800. 00 “ 236,020. 00

Group 2: Redundants:Schedule: “A” Schedule: “B” Total

1. Festus Mati KiramataKshs.47,488. 00 Kshs.5,440. 00 Kshs.52,928. 00

2. Doris Kanyua Njagi“ 86,664. 00 “ 6,290. 00 “ 92,954. 00

3. Festus Kithinji C. Muchiri“ 35,622. 20 “ 4,080. 00 “ 39,702. 20

4. Fredrick Miriti M’Muga“ 63,747. 00 “ 5,270. 00 “ 69,017. 00

5. Pauline Mukwanyaga Barine“ 32,837. 00 “ 5,270. 00 “ 38,107. 00

6. Magdaline M. Njeru“ 132,713. 00 “ 5,270. 00 “ 137,983. 00

7. Naftally Kathuuri MareteKshs.19,335. 00 Kshs.4,080. 00 Kshs.23,415. 00

8. Bernard Riungu M”Thambu“ 32,018. 80 - “ 32,018. 80

9. Jane Ithima“ 74,199. 20 “ 6,290. 00 “ 80,489. 20

10. Fredrick Njagi Musa“ 9,923. 00 “ 5,440. 00 “ 15,363. 00

11. Solomon Njue Mukobwa“ 144,650. 00 “ 5,440. 00 “150,090. 00

12. Agnes Mukwaiti“ 72,761. 00 “ 5,440. 00 “ 78,201. 00

13. Kellen Kanyuru“ 144,650. 00 “ 5,440. 00 “150,090. 00

Mr. Basilio, the learned counsel for the Hospital, conceded that the tabulations were correct according to the provisions of Clauses 16 and 18 of the collective agreement entered into between the Union and the National Christian Council of Kenya (hereinafter referred to as NCCK) which was in force at the material time, i.e. in 1998. But, on the contrary, he strongly contended that, although the Hospital is owned by the Church, i.e. Presbyterian Church of East Africa (hereinafter called P.C.E.A.), the terms and conditions of the said collective agreement were not applicable to its (Hospital’s) employees because the Hospital had its own terms and conditions of service for its own employees. In support of his case, Mr. Basilio relied on Article 6(b)(i) of the 2002 amended NCCK Constitution and By-Laws, which states as follows:-

“6. SCOPE OF THE COUNCIL’S AUTHORITY

a)………………………………………………

b)COMMITMENT TO ACTION

i)The actions and pronouncements of the Council shallnote commit any member to any policy or action or responsibility without the member’s consent.

ii)……………………………………………………………………”

Mr. Basilio argued further that all the grievants had been paid their terminal benefits as tabulated hereinabove and to impose any additional payment on the Hospital will lead to serious financial implications which may lead to its complete collapse. Accordingly, he prayed that the demand by the Union be rejected as baseless and untenable.

On careful perusal of the documents on the record in this matter and after anxious consideration of the parties’ submissions, I am persuaded that P.C.E.A., is a corporate member of NCCK, which had duly recognised, negotiated and signed, on behalf of its members, including P.C.E.A., several collective bargaining agreements with the Union; and in the circumstances, I

do not find any substance in the plea by Mr. Basilio that the Hospital had its own terms and conditions of service or employment for its own employees. After all, the NCCK Constitution and by-Laws, which Mr. Basilio relied on to support his case, was a 2002 amended one; and it does not assist the Court in any way because the grievants were retired and declared redundant long before, i.e. in 1998.

In the result, I find that the demand by the Union is justified; and I, therefore, AWARD that the Hospital pays forthwith to the grievants their terminal benefits at pages 4, 5, and 6 hereinabove. I so order.

Both members of the Court have failed to give their opinion on this matter.

DATED and delivered at Nairobi this 11th day of December, 2003.

Charles P. Chemmuttut,

JUDGE.