[2013] KEELRC 847 (KLR)

REPUBLIC OF KENYA

IN THE INDUSTRIAL COURT OF KENYA AT NAIROBI

CAUSE NO 721 OF 2010

KENYA UNION OF EMPLOYEES OF VOLUNTARY

AND CHARITABLE ORGANIZATIONS (KUEVACO)…………………. CLAIMANT

VERSUS

THE HOLY SPIRIT ASSOCIATION FOR

THE UNIFICATIONS OF WORLD CHRISTIANITY

FAMILY FEDERATION FOR WORD PEACE AND

UNIFICATION (THE UNIFICATION CHURCH)……...……….…… RESPONDENT

JUDGMENT

By a Memorandum of Claim dated 21st June 2010 and filed in court on 23rd June 2010, the Claimant Kenya Union of Employees of Voluntary and Charitable Organizations alleges that the Grievants Rev. Boniface Otieno Okelo and Ms. Mazwel Mayamba Otieno Okelo were unduly influenced to accept employment of the Respondent. That the 1st Claimant Rev. Boniface Otieno Okelo was employed on 1st May 1984 by the fore runner of the Respondent, the Association of Education Development (AED.) in the position of social worker. He produced an identity card as proof of the employment at appendix B. The Claimant further alleges that the 2nd Grievant Ms. Mazwel Mayamba Otieno was employed in January 1984 by the Respondent as a missionary in Zaire. That the 1st and 2nd Grievants got married in January 1989 and are living together as husband and wife and continue in the service of the Respondent. That on 28th October 1992 the forerunner of the Respondent gave the Grievants a letter of recommendation addressed “To Whom It May Concern” titled “RE: Letter of Affiliation”, to enable them work. The Claimant alleges that the Grievants thereafter obtained renewable resident permits for Tanzania where jointly with others they set up a church by the name “The Holy Spirit Association for the Unification of World Christianity in Tanzania”. That the Grievants were called back by telephone communication to the African Continental Headquarters in Nairobi in February 2001 and arrived on 1st March 2001. The Respondent submits that upon arrival back to Kenya the Grievants got a hostile reception at the Respondents Sasamoto Hostel upto 15th May 2001 when they were given shs.20,000/= for rent and food. That from May 2001 the Respondent failed to pay rent and to provide them with their basic needs. That as a consequence their landlord evicted them on 20th March 2005 and took their property valued at over Shs.215,000/=. That a Good Samaritan gave them bus fare back to Sasamoto Hostel for accommodation. That on 20th September 2005 the Respondent gave the Grievants 10 days’ notice to vacate the Sasamoto Hostel. On 24th September 2005 the Respondent requested for a meeting to resolve the matter amicably and by letter dated 26th September 2005, the Respondent acknowledged receipt and convened a hearing on 28th September 2005. The Grievants finally vacated Sasamoto Hostel on 3rd July 2007 and were given Shs.20,000/=. That the Claimant wrote to the Respondent seeking an amicable settlement but the Respondent failed to settle following which the Claimant reported a dispute to the Minister for Labour.

The Claimant seeks the following prayers.

Rev. Boniface Otieno Okelo

The QUANTUM MERUIT that the Respondent acting Bona fide would or ought to have been paying him for the services actually performed as from May, 1984 upto December 2000.

The Grievants BENEFICE SHARE OF A TRUE CHILD for 79 months in terms of APPENDICES “D-2” and “D-3” FROM January 2001 upto July 2007 = $548,500.

700 days of accumulated and prorated leaves at the rate of USD 7,000 per month = $164,000.

18 months pay in lieu of Reasonable Notice at the rate of USD 7,000 = $126,000.

Deterrent 12 months Compensation at the rate of USD 7,000 per month = $84,000.

Total of ii,iii,iv and v = USD922,500.

Ms. Mazwel Mayamba Otieno

The QUANTUM MERUIT that the Respondent acting Bona fide would or ought to have been paying her for the services actually performed as from January, 1984 up to December 2000.

The Grievant’s BENEFICE SHARE OF A TRUE CHILD for 79 months in terms of APPENDICES “D-2” and “D-3” from January 2001 upto July 2007 = $548,500.

705 days of accumulated and prorated leaves at the rate of USD 7,000 per month = $164,500.

18 months pay in lieu of Reasonable Notice at the rate of USD 7,000 PER MONTH =$126,000.

Deterrent 12 months Compensation at the rate of USD 7,000 per month =$84,000.

Total of ii, iii, iv and v = USD 923

The other prayers are as follows

THAT, in the terms of APPENDICES “D-2” AND “J-3” The Honourable Court ORDER the Respondent to “PAY EACH GRIEVANT A BENEFICE FOR LIFE AT THE RATE OF $7,000 PER MONTH”, progressing by 10% per year effective from 1st August, 2007.

THAT, the Respondent pay the Grievant jointly Kshs.215,000/= being the value of their household properties taken by the Landlord, on 20th March, 2005, for her failure and/or neglect to pay the Grievants’ house rent for almost four (4) years.

THAT, the Respondent bears the court costs, and pay the interest of the quantum meruit at court rates.

The Respondent filed its Reply to the Statement of Claim on 23rd July 2010 in which it denies that the Grievants were in its employment at any time. The Respondent avers that it is a separate and distinct legal entity from AED and is not in any way liable or privy to the testimonials, writings or references in the claim. The Respondent avers that the Grievants may have become members of the church in 1984 and 1989 for the 1st and second Grievants respectively and that they may have engaged in church activities as volunteers but not as employees, that volunteers do not earn salaries, that the services rendered were not to the Respondent but for the purpose of the christian mission to spread the Good News. The Respondent further denies any arrangements or privity with the alleged forerunner. The Respondent avers that the mission registered in Tanzania was a separate and distinct legal entity, and that the Grievants had autonomy in its management including the management of its funds during the Grievants’ leadership from 1992 to 2001, that the Tanzania Mission preceded the Kenyan mission as it was registered in 1992 while the Kenyan Mission was registered in 1994. That it is not possible for the Respondent to have employed the Claimants before it came into existence. The Respondent prays that the Claim be dismissed.

I have considered the pleadings, the appendices and the oral submissions of the parties.

The issues for determination in my opinion are the following.

Whether there was an employment relationship between the Grievants and the Respondent.

Whether the Respondent terminated the employment of the Grievants and if so,

Whether the Grievants are entitled to payment as claimed.

Whether the Grievants were employed by the Holy Spirit Association of Unification of Christianity.

The Claimant submitted that the Grievants were employed by the Respondent without letters of appointment to serve without salaries. The services were outside Kenya in Tanzania and Zaire.

A contract of service is defined in Section 2 of the Employment Act to mean an agreement, whether expressed or implied, to employ or to serve as an employee for a period of time;

The Act defines an employee as a person employed for wages or a salary, and an employer as a person, public body, firm, corporation company who or which has entered into a contract of service to employ an individual.

In the present case the Grievants allege that their employment was without a contract, that is, it was verbal, and without a salary or wage. No terms of contract were agreed upon, they performed their work in Dar-es-Salaam in Tanzania and were recalled to Kenya orally by telephone. The person who employed them was not the Respondent but the Association for Education and Development (A.E.D).

The Grievants allege that the Respondent is the successor of AED and it is in that capacity that the Respondent has been sued.

The Respondent was registered on 7th February 1994 under the Societies Act. Its constitution does not mention any relationship with AED. The Holy Spirit Association for the Unification of World Christianity in Tanzania (HSAUWC) where the Grievants are alleged to have been operating between 1992 and 2001 before being recalled to Kenya was registered in 1992, before the Respondent’s registration.

I have tried to search for the nexus between the Grievants and the Respondent and cannot find any. There is no document in the bundles filed by the Claimant to connect the Respondent and AED. I cannot find any evidence to connect the Respondent and AED which the Claimant alleges is the forerunner of the Respondent.

I also cannot find any evidence of an employer/employee relationship between the Respondent and the Grievants. There is no evidence of any connection between the Respondent and AED whom they claim was their employer.

For these reasons I find that the Claimant has not proved that there was an employment relationship between the Grievants and the Respondent.

There being no employment relationship there could not have been any termination of a non-existent employment relationship. Having made this finding I do not have to make any finding on issue no 3 as framed herein above.

The upshot is that the case is dismissed with no orders for costs.

Orders accordingly.

Read in open Court this 1stday of October2013

HON. LADY JUSTICE MAUREEN ONYANGO

JUDGE

In the presence of:

Janitor Odin Otieno for Claimants

Ms. Kinyanjuifor Respondent