[2014] KEELRC 695 (KLR)
The court found that the Respondent had substantially complied with the award of 24th August 2012 by paying the damages, arrears, and issuing a letter up-grading the Claimant to job grade MG.5. The Claimant failed to provide sufficient evidence that he was earning less than his colleagues in the same grade or that...
Source-derived case information.
- Citation
- [2014] KEELRC 695 (KLR)
- Parties
- Claimant: Musawa Zacchaeus Mumali; Respondent: Nzoia Sugar Company Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 1029 of 2011
- Procedural Posture
- Employment Cause / Ruling on Contempt Application Post Award
- Outcome
- application dismissed
- Judges
- J Rika
- Legal Topics
- Contempt of Court, Enforcement of Awards, Job Upgrading, Remuneration Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Musawa Zacchaeus Mumali
Claimant
Nzoia Sugar Company Limited
Respondent
Procedural Posture
Employment Cause / Ruling on Contempt Application Post Award
Legal Issues
- 1 Whether the Respondent fully complied with the court's award regarding the Claimant's job up-grade and remuneration.
- 2 Whether the Managing Director of the Respondent should be committed to prison for contempt of court.
Ratio Decidendi
The court found that the Respondent had substantially complied with the award of 24th August 2012 by paying the damages, arrears, and issuing a letter up-grading the Claimant to job grade MG.5. The Claimant failed to provide sufficient evidence that he was earning less than his colleagues in the same grade or that the Respondent had flagrantly disobeyed the court's order. As such, the threshold for contempt was not met. The court held that any imbalance in remuneration should be addressed through verifiable evidence and an order for payment of arrears, not through imprisonment of the Managing Director.
Court Disposition
application dismissed
Orders
- The application seeking to commit the Managing Director Mr. Saul Wasilwa to prison for contempt of court is disallowed.
- No order on the costs.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE INDUSTRIAL COURT AT NAIROBI
CAUSE NUMBER 1029 OF 2011
BETWEEN
MUSAWA ZACCHAEUS MUMALI………………..………………………………………… CLAIMANT
VERSUS
NZOIA SUGAR COMPANY LIMITED……………………………………………………RESPONDENT
RULING
The Court delivered an Award on 24th August 2012, ordering the Respondent inter-alia to place the Claimant in job grade MG.5, and pay the Claimant the monthly remuneration applicable to that grade.
The Respondent complied with the Award, but the Claimant feels there was no full compliance on the order for job up-grade.
He consequently filed an application dated 28th January 2013 seeking to have Mr. Saul Wasilwa, Managing Director of the Respondent Company, committed to prison for such period of time as the Court may deem fit.
The application is based on the affidavit of the Claimant, sworn on 28th January 2013.
The Respondent relied on the two affidavits sworn by its Legal Officer Rita Makhongo.
Parties agreed to have the application determined by way of written submissions, which have been placed on the record.
The Court Finds and Orders:-
The Respondent has complied substantially, with the Award of 24th August 2012. The Claimant has received damages awarded at Kshs.1,500,000, and arrears of Kshs.1,339 per month dating back from 1st July 2004 have been paid. The Claimant received a letter dated 14th February 2013, up-grading him to job grade MG.5. It is not therefore correct for the Claimant to state under paragraph 8 of his Statement of Claim dated 28th January 2013, that the Respondent has flagrantly disobeyed the entire Award.
There is nothing in the Claimant’s Statement of Claim or affidavit in support of the application, to show that Employees currently in MG.5 are earning more than Kshs.100,806. This is an assertion contained in the Claimant’s submissions, but which is not borne out in evidence.
Consequently, the Claimant has not shown sufficient reason to merit the imprisonment of Mr. Saul Wasilwa for contempt of Court.
The Claimant should instead bring cogent evidence to show that although he has been up-graded, he continues to earn less than his colleagues in the grade MG.5. Such an imbalance can be rectified by an order for payment of verifiable arrears, without imprisonment of the Managing Director. IT IS ORDERED:-
The Application seeking to commit the Managing Director Mr. Saul Wasilwa to prison for contempt of Court is disallowed.
No order on the costs.
Dated and delivered at Nairobi this 22nd day of January 2014
James Rika
Judge