[2001] KEELRC 1 (KLR)
The court found that the Club, having failed to file a reply statement or attend the hearing despite due notice, left the Union's case unchallenged. The parties had a recognition agreement and collective agreements governing the terms of service, and it was mutually agreed that the total terminal benefits due to the...
Source-derived case information.
- Citation
- [2001] KEELRC 1 (KLR)
- Parties
- Applicant: Kenya Union of Domestic, Hotels, Educational Institutions, Hospitals & Allied Workers; Respondent: Kilimanjaro Safari Club
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 58 of 2000
- Procedural Posture
- Employment Dispute / Final Award
- Outcome
- Claim allowed in full. Award in favour of the Union.
- Legal Topics
- Redundancy Procedure, Terminal Benefits, Collective Agreements, Unionisable Employees
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenya Union of Domestic, Hotels, Educational Institutions, Hospitals & Allied Workers
Applicant
Kilimanjaro Safari Club
Respondent
Procedural Posture
Employment Dispute / Final Award
Legal Issues
- 1 Whether the termination of the grievants' employment through redundancy was wrongful.
- 2 Whether the grievants are entitled to the outstanding balance of terminal benefits as claimed by the Union.
Ratio Decidendi
The court found that the Club, having failed to file a reply statement or attend the hearing despite due notice, left the Union's case unchallenged. The parties had a recognition agreement and collective agreements governing the terms of service, and it was mutually agreed that the total terminal benefits due to the grievants amounted to Kshs.11,242,524/=. The Club had already paid Kshs.6,000,000/=, leaving an outstanding balance of Kshs.5,242,524/=. In the absence of any contrary evidence or justification from the Club, the court accepted the Union's claim and ordered the Club to pay the outstanding balance within thirty days.
Court Disposition
Claim allowed in full. Award in favour of the Union.
Orders
- The Club shall pay the outstanding balance of Kshs.5,242,524/= to the grievants within thirty (30) days from the date of this award.
Full Case Text
Judgment text and source record
132 paragraphs
IN THE INDUSTRIAL COURT OF KENYA
AT NAIROBI.
(Before: Charles P. Chemmuttut, J.,
H.B.N. Gicheru & A.K. Kerich, Members.)
CAUSE NO.58 OF 2000.
KENYA UNION OF DOMESTIC, HOTELS,EDUCATIONAL INSTITUTIONS,
HOSPITALS& ALLIED WORKERS.......................................................................Claimants.
- v -
KILIMANJARO SAFARI CLUB..........................................................................Respondents.
Issue in Dispute:-
“Termination of employees through wrongful redundancy (hereinafter called the grievants), namely:-
1. Raphael Nyonyo 7. Julius M. Syengo
2. Joseph K. Mudanya 8. Kenneth L. Mutunga
3. Ruth Musembi 9. Samuel Oliyo
4. Olive Alu 10. Joseph M. Kitela
5. Agnes Spira 11. Joseph M. Magiri
6. Julius Nyateng 12. Daniel Masila Mutua
13. Francis Maina34. Charles Mambili
14. Mailu Kitothya35. Catherene Lewett
15. David Githu36. Naomi Njeraini
16. Charles Njoroge37. Sottika Leriro
17. Benedict Kimilu38. Julieta Kariet
18. Rosemark Akatsa39. Onica Atieno
19. Berita Mwikali40. Mutie Mutuku
20. Alphonse Muhanda41. Rodah Mwangangi
21. John Kinuthia42. Wilfred Omukura
22. Raphael Wambua43. Lau Kingode
23. Maundu Kilundo44. Wilson Mbinga
24. George Wambua45. Leonard Pang-Pang
25. Kamau Gathua46. Francis Muriithi
26. Serah Mutuku47. Robinson Mwachand
27. Islidah Akinyi48. Bernard Njoroge
28. Hosea Shikoli49. Ngoka Ngumbao
29. Charles Wambua50. Titus Ngutho
30. Christopher Njenga51. Muingai Muchunu
31. Joseph Mutunga52. William Saya
32. Justus Wafula53. Enosh Adaga
33. Mutua Kitelo54. Dedan Adika
55. Simon Kimotho76. Simon Kioko
56. Benjamin Mulatya77. James Musyoka Manyi
57. Benson Ndikolo78. Cleophas Wabomba
58. Patrick Njoroge79. Joseph Ngutho
59. Samuel Kalalya80. Patric Nyamai
60. Joram Lisanza81. Stephen Njenga
61. Anderson Mbithuka82. Henry K. Muli
62. Joseph Mwashigadi83. Peter Sila
63. Patrick Mutisya84. Edward K. Kibiti
64. Jessee Njiraini85. Joab Amanya
65. Charles K. Kabeni86. Elija Njue
66. Joel Mwambacha87. Joshua A. Lipesa
67. Annastasia Mueni88. Richard Tito
68. Albert Alijanda89. Dickson Kilonzo
69. Paul Mwololo90. Sumulex Ole Nkijsho
70. Mukenga Kilundo91. Ole Nkooya
71. Geoffrey Mwatha92. Njuguna Mwangi
72. Ernest Mokavero93. Onesmus Makewa
73. Muthani Kamuya94. Joshua Muasya
74. Musa Obiero95. Peter Mutua
75. Benedict Muindi96. Benson Matheri
97. Mwonga Kinyanjui118. Geoffrey Munyao
98. Jackson Kilango119. Benedict Mutuku
99. David Muni Dishon120. George Njoroge
100. Doreen M. Kale121. Kioko Nyangi
101. Ngula Mutunga122. Harrison Fondo
102. Albanus Mwaura123. Elias Mruma
103. John Abdul Tambo124. Moses Olango
104. Mutula Munyalo125. Ishmael Chengo
105. Daniel Munyala126. Cornel Otieno
106. Rakoi Ole Papai127. Kalunda Muindi
107. Mwangangi Nguli128. Joseph Ndavi
108. Joyce Saroa John129. Paul Masavu
109. Samuel Opi130. Peter Nzelu
110. David Matata131. Philip Muindi
111. David Sapala132. Metui Ole Muiru
112. Jacob Kimaita133. Patrick Wambua
113. Paul Kitwanja134. Daniel Kinyanjui
114. Bernard Kamau135. Patrick Majoni
115. Georgina Muthoni136. James Kasivu
116. Patrick Mutisya137. Mositet Ole Sintila
117. Maurice Linzalia138. Henry Ogango
139. James Nzomo160. Paul Kyangute
140. Peter Mbuvi161. Nathan Akatsa
141. Joseph Katana162. Peter M. Mureithi
142. Ephantus Kamunyu163. Gabriel Wambua
143. Leonard Kitela164. Ethern Wasike
144. Wilfred Muiya165. Titus Kyalo
145. David Musila166. Metui Ole Suiyanka
146. Ngigi Ngungu167. Jane Odhiambo
147. John Njuguna168. Joyce Nyangasi
148. Elijah Njoroge169. Kennedy Omukuba
149. Sunte Mpaayo170. Charles Ole Tiptip
150. Stephen Muilu171. Esther Owuor
151. Jonathan Mwakoto172. Kahol Ole Siton
152. Mwangi Nyamanduru173. Saruni Ole Sharua
153. Stephen Mutinda174. Zacharia Mucheru
154. Musyoka Moki175. Stanley A. Lipesa
155. Javan Luvisi176. Sipannta Kurambe
156. Boniface Mutia177. Philip Murikut
157. Dominic Wambua178. Patrick Nyaneweso
158. Peter Munywoki179. Ngalania Ole Koijla
159. David Kiarie180. Anastasia Kalondo
181. Sabina Soila202. Annastasia Wambua
182. Margaret Nyokabi203. Jane Wambui
183. Peter Mwangi204. Sera Bakari
184. Peter Onyango205. Patrick Mwithya
185. Nkarat Ole Nkooya206. Philip M. Kinyumu
186. Oloitotton solonka207. Stephen Charo
187. George M. Musa208. Kimetu Kilelo
188. Peter K. Kibet209. Robert Mwani
189. Boniface Gacuhi210. Kamau Mwangi
190. Munkas Lenkutulk211. John L. Lumuli
191. Edith Amaingu212. Gabriel Wambua
192. Bernard Kiamba213. Ethern Wasike
193. James O. Mugele214. Titus Kyalo
194. Gideon Munyao215. Metui Ole Suiyanka
195. Daniel K. Kyengo216. Jane Odhiambo
196. Kabungo Kivulo217. Joyce Nyangasi
197. Susan Njeri218. Kennedy Omukuba
198. Martin Odhiambo
199. John Amwayi
200. Arexides bukhala
201. Stephen Ajega
Mwari S. Njiru for the Claimants (hereinafter called the Union).
No appearance for the Respondents (hereinafter called the Club).
A W A R D.
On 23rd May 2000, the Minister for Labour referred this dispute to the Court for adjudication and determination in exercise of the powers vested in him by Section 8 of the Trade Disputes Act, Cap.234, Laws of Kenya (which is hereinafter referred to as the Act). The reference, together with the statutory certificates from the Minister himself and the Labour Commissioner under Section 14, subsection (9)(e) and (f) of the Act, were received by the Court on 24th May 2000, and the dispute was listed for mention on 14th June 2000. On this occasion, Mr. Mwari appeared for the Union and Mr. R.M. Muthanga, Executive Officer, F.K.E., appeared for the Club. The Personnel Manager of the Club, Mr. Philip Koech, was also present or in attendance. The dispute was fixed for hearing on 7th September 2000, and meanwhile, the Union were directed to submit their memorandum on or before 14th July 2000, and the Club were ordered to file their reply statement on or before 31st August 2000. The Union submitted their memorandum on 18th July, 2000, but the Club did not file any reply statement thereto as ordered hereinabove. On 1st September 2000, Mrs. M. Onyango, Executive Officer, F.K.E., for the Club requested for a another mention on 7th September 2000, instead of a hearing, on the ground that she had not received a copy of the memorandum submitted by the Union. The dispute was, however, listed for a further mention on 11th October 2000, when Messrs. Mwari and Muthanga appeared for the parties respectively. On this date, the case was rescheduled by mutual agreement for hearing on 30th January 2001, and meanwhile the Club were allowed to file their reply statement on or before 10th November 2000. They did not submit the same and no reasons were given for their default. On 30th January, 2001, Mrs. Onyango for the Club applied to withdraw from the case for lack of instructions. The application was granted, and the matter was heard ex-parte.
The parties have a recognition agreement and have also entered into several collective agreements which regulate the terms and conditions of service of the unionisable employees. On careful perusal of the submission by the Union, I note that this dispute was processed through all the normal stages of the pre-Industrial Court machinery; and it was mutually agreed by the parties that the employees’ terminal benefits stood at Kshs.11,242,524/=. Consequently, it was conceded by Mr. Mwari for the Union, the Club made part payment thereof, amounting to Kshs. 6,000,000/=, leaving a balance of Kshs.5,242,524/=. He, therefore, prayed that the grievants be paid the aforementioned outstanding balance of Kshs.5,242,524/= forthwith.
As the Club neglected and/or refused to file their reply statement to the memorandum of the Union and were also absent during the hearing, despite having been notified to attend and file the same, I have, therefore, no reason to disbelieve the case of the Union. In the circumstances, I allow the demand as prayed for hereinabove by the Union and order the Club to pay the said outstanding balance of Kshs.5,242,524/= within thirty(30) days from the date of this award.
The members did not offer their opinion or advice on this matter.
DATED and delivered at Nairobi this 9th day of March, 2001.
Charles P. Chemmuttut,
JUDGE.