[2018] KEELRC 607 (KLR)
The court found that the respondent admitted to delays in paying workers' salaries due to economic constraints, and there was no dispute that salary arrears were owed. The claimant's prayer for payment of all accrued salaries since July 2014 was granted, as the respondent failed to contest the claim or appear in...
Source-derived case information.
- Citation
- [2018] KEELRC 607 (KLR)
- Parties
- Applicant: Kenya Union of Domestic, Hotels, Educational Institutions, Hospitals and Allied Workers (KUDHEIHA Workers); Respondent: Garden Hotel, Machakos
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 1907 of 2014
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- judgment for claimant
- Judges
- B Ongaya
- Legal Topics
- Salary Arrears, Failure to Pay Wages, Trade Dispute Referral, Conciliation Procedure
- 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 and Allied Workers (KUDHEIHA Workers)
Applicant
Garden Hotel, Machakos
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the respondent failed to pay workers' salaries in contravention of section 18(2) of the Employment Act, 2007.
- 2 Whether the claimant is entitled to an order for payment of all accrued salaries since July 2014.
- 3 Whether the court can invoke section 88(1) of the Employment Act, 2007 to impose a penalty on the respondent.
Ratio Decidendi
The court found that the respondent admitted to delays in paying workers' salaries due to economic constraints, and there was no dispute that salary arrears were owed. The claimant's prayer for payment of all accrued salaries since July 2014 was granted, as the respondent failed to contest the claim or appear in court. The court declined to invoke its criminal jurisdiction under section 88(1) of the Employment Act, 2007, noting that such proceedings must be initiated before a Magistrate's Court. The judgment was therefore entered in favour of the claimant for payment of all accrued salaries since July 2014, with interest accruing from the date of judgment if not paid by 31st December...
Court Disposition
judgment for claimant
Orders
- The respondent to pay the workers all accrued salaries since July 2014 to date and to pay by 31.12.2018, failing which interest to be payable thereon at court rates from the date of judgment until full payment.
- The respondent to pay the claimant's costs of the suit.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF KENYA AT NAIROBI
CAUSE NO.1907 OF 2014
KENYA UNION OF DOMESTIC, HOTELS, EDUCATIONAL INSTITUTIONS,
HOSPITALS AND ALLIED WORKERS (KUDHEIHA WORKLERS)...CLAIMANT
- VERSUS -
GARDEN HOTEL, MACHAKOS.............................................................RESPONDENT
(Before Hon. Justice Byram Ongaya on Friday 16th November, 2018)
JUDGMENT
The claimant filed the memorandum of claim on 29. 10. 2014 alleging failure by the respondent to pay workers’ salaries contrary to section 18(2) (c) of the Employment Act, 2011. Despite service the respondent failed to enter appearance, to file defence, or to attend at the hearing. The claimant opted that the suit be determined on the basis of the pleadings and documents on record.
The claimant’s case is that the respondent developed a habit of not paying workers’ salaries effective sometimes in 2010. On 22. 01. 2013 the claimant reported a trade dispute and the Cabinet Secretary for labour appointed a conciliator. The conciliation proceedings failed to resolve the dispute and the conciliator issued a certificate on 14. 08. 2013 for referral of the dispute to the Court. By the letter dated 05. 09. 2013 the claimant wrote to the respondent pleading that the respondent pays the workers’ salary arrears for April and May 2013 and the respondent appears to have cooperated and paid accordingly. However, the respondent appears to have failed to pay salaries effective January 2014 to June 2014.
The conciliator’s certificate that the matter be referred to the Court is dated 03. 07. 2014. In the memorandum of claim filed on 19. 10. 2014 the claimant prays for an order that the respondent to pay the workers all accrued salaries since July 2014 to date. The claimant further prays that the Court invokes section 88 (1) of the Employment Act, 2007 and order the respondent as the employer to pay a fine not exceeding three months or both as general penalty for infringing section 18(2) of the Employment.
By the letter dated 04. 02. 2013 the respondent admitted that due to economic and business slumps, the respondent had salary arrears due to the workers. By the letter dated 26. 07. 2013 the union agreed that the respondent would make payment of salaries due to workers in full for the Month of April and May 2013 by 07. 08. 2013. The payment as already pointed out was effected though belatedly.
The Court has considered the material on record. The respondent admitted that due to economic constraints there were delays in paying due salaries to the workers. The Court considers that the prayer that outstanding salaries be paid would therefore be granted as prayed for.
The Court considers that the case before Court is a referral of a trade dispute and the submission that the Court invokes criminal jurisdiction by invoking section 88(1) of the Employment Act, 2007 and impose a penalty for contravention of section 18(2) of the Act is beyond the current referral and the prayer will fail. In any event such criminal proceedings will have to be initiated before the Magistrate’s Court with jurisdiction to try the alleged offence.
In conclusion judgment is hereby entered for the claimant against the respondent for:
a) The order that the respondent to pay the workers all accrued salaries since July 2014 to date and to pay by 31. 12. 2018 failing interest to be payable thereon at Court rates from the date of the judgment till full payment
b) The respondent to pay the claimant’s costs of the suit.
Signed, dated and delivered in court at Nairobi this Friday 16th November, 2018.
BYRAM ONGAYA
JUDGE