[2017] KEELRC 1209 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR

RELATIONS COURT AT MOMBASA

CAUSE NUMBER 960 OF 2016

BETWEEN

NYALI INTERNATIONAL BEACH HOTEL......................CLAIMANT

VERSUS

1. MPE SHINDO BUNDI

2. STEPHEN MATAISU KIOKO

3. FREDRICK NJOROGE NYUTU

4. JOHANNES MCHAWIA MWARABU

5. THOMAS MALOMBE JOHN

6. KIOKO DAVID KIAMBA

7. DANIEL NDAMBUKI

8. MWINYI M MADZUMBA

9. JACKSON KISILU NZIOKA

10. HARRISON MBIKU

11. PASCAL MWAMUYE

12. ONESMUS D. MUTISYA

13. LAZARUS OMAMO

14. KYALO MUTHOKA

15. DAVIDSTONE KURA NZUNGULA

16. ERIC ANGUSA MUKEYA

17. DANIEL NGIGE

18. LAWRENCE TSORI

19. SIMON MUTUKU

20. KIOKO KAKULI

21. DAMIAN MUTHOMI

22. MARTIN SHISIA

23. GERALD MWOJA

24. JULIUS KAMBALE

25. CARLOS WASWA

26. PASCAL TUNJE

27. BEATRICE OCHOLA

28. JANET AKINYI

29. KASSIM KALUME NGOLLO

30. PETER MULANDI

31. PAUL JUMA ABILA

32. ISAACK OGUL

33. MARY ANNE ACHIENG’ AYOO

34. DOMINICK KAGASI

35. ALFRED KITHINJI RUU

36. DICKSON KISILU KIMUY

37. FLORA AYESA IKUTWA

38. SAMUEL KAMAU KARIUK

39. ANTHONY OCHIENG’ OMONDI

40. JAMES MUTHAMI MUTUN

41. GILBERT RUNGUA

42. SALOME MUKABWA

43. MICHALE MWAI MATHAI

44. SEIF ALI

45. LUCY NJERI

46. VIVIAN BANDA

47. FRANCIS MAINA MURIITHI

48. MONICA KADOWE

49. ALBERT PEKU

50. ALEX MUANGE

51. NELSON IDDI

52. NASSOR MOHAMED MWAPESA

53. FLORENCE KISAKA

54. PILI KAHINDI KITHI

55. AGNES MWALUMA

56. LILLIAN MARIGA IRUMBA

57. DANSTON KHAYEGA

58. MWAYUGA HUDSO

59. ELSOPHAN WANDERA

60. TOBIAS MKAYA

61. PETER MUTHENGI

62. TEBRA IMARI EBUYA

63. BOAZ OTIENO OLOTO

64. RUPHENCE NJEGHE KITAWA

65. BAKARI TSULU MWADUDU

66. JOSEPHINE SAKI

67. SAMUEL NGAO

68. TERESY MUTHEI MAILU

69. PHILEMEON MWANGASHI MARI

70. ALEX CHARO MKOKA

71. GRACE CHAO MWABILI

72. LILIAN CHEGE

73. IRENE APIYO

74. DANIEL ORITO

75. RICHARD OCHAMI

76. SHADRACK MAKUPE

77. JUMA MASHALA

78. TUKIKO OJWANG’

79. GEORGE INGASO

80. RASHID ATHUMANI KASSIM

81. DOMINIC MUTHUVI

82. NETO AUGUSTINO

83. DUNCAN LENJO

84. ALFRED M. MUSYA

85. JOHN NJERU MPURIA

86. BRYSON MWANJALA

87. HAMISI BAKARI

88. PETER KOECH

89. GASPER OKWACHI MWANYOTA

90. WASHINGTON O WAKA

91. JAMES MVURYA WANINI

92. TSUMA NYAMAWI

93. AMUR ABDALLA

94. VICTOR GITONGA

95. THOMAS ELVIS KIPLANGA

96. ISAAC WANAMBUKO MATSILI

97. JAMES NYUMU KIOKO

98. DAVID EMBWAKA MATSILI

99. JAMES MADAKAA

100. PAUL MBOYA

101. BENSON MUTIMBA

102. EDWARD CHOME

103. ISSACK SONJE

104. SAMUEL KARIUKI KAMAU

105. KASSIMU SIMIDI BULIMU

106. VICTOR MWAKWARI MAGHENYI

107. JOSEPH NGOA

108. MOKI MUTHAMA

109. DONALD TUVA

110. JAMES VUNDI

111. HUMPHREY MAINA

112. MORRIS JILANI

113. SCOVIA SOITA

114. UHURU MUTUA

115. DUNCAN LUVASO

116. KENNEDY SAMUEL GUNGA

117. DICKSON ADUDA

118. ARTHUR SHIKANGA

119. BERYL ATIENO

120. DANIEL YALLA

121. JOEL NYANDORO

122. MOSES OMULO ODHACH

123. REUBEN SHIEMI ISSIYE

124. RUDY GAKURE

125. RACHEL WANJALA

126. NAHASHON MLATI

127. SAMUEL K. MUNALA

128. SIMON MWANGEMI

129. JOSHUA MUGWIRIA

130. SAID USAMA

131. DENNIS NYANDEGE MARIIITA

132. BENSON LUGANJI

133. MOHAMED MZEE

134. TABITHA MOGIRE

135. EMILY OYUGI

136. PETER MUTHENGI

137. HARRISON MWARINGA

138. GARDINER ARUNGA

139. JONATHAN SULUBU

140. JOHN NJUGUNA MUKIRI

141. ERNEST MUTUNGI PETER

142. CAXTON NGONYO NGUMBAO

143. ELIZABETH WALI WACHIA

144. PETER GARAMA

145. NELLIE W. MACHARIA

146. ALFANI SALIMU MWAZECH....RESPONDENTS

RULING

1. The Claimant is a Beach Hotel at Mombasa, the Respondents its Employees. On 25th November 2016, the Respondents wrote to the Claimant a 14- day notice, calling on the Claimant to pay them their arrears of salary, allowances and service charge in full, failing which they would stage a sit-in, until payment is made in full.

2. The Claimant filed this Claim on 16th December 2016 under Certificate of Urgency, seeking a declaration that the intended industrial action by the Respondents is illegal; the Respondents are permanently restrained from calling for industrial action without following the proper channel as provided for under the applicable CBA; and the Court issues directions for conciliation as a matter of urgency.

3. With the Claim is filed an Application for interim measures. The Claimant seeks to have the Respondents compelled to withdraw their sit-in notice pending hearing and determination of the Application; the Respondents are restrained from calling for any other industrial action against the Claimant pending hearing and determination of the Application; the Respondent are restrained from calling for industrial action against the Claimant without following due procedure, pending hearing and determination of the Claim; the intended Industrial action is declared illegal, un-procedural and unprotected; the Court issues directions on conciliation; and costs be in the cause.

4. The Court granted interim measures to the Claimant on 16th December 2016 restraining the Respondents from going on with the intended sit-in, and granted the Respondents 7 days to file their Response. It was ordered the Claimant serves the Summons and Pleadings upon Kenya Union of Domestic, Hotels, Educational Institutions, Hospitals and Allied Workers, who represent the Respondents.

5. The Respondents filed an Application dated 8th February 2017, now acting through their Union KUDHEIHA, asking the Court to order the Claimant to pay their arrears of salary, calculated at Kshs. 9,745, 0000 at the time of filing the Application. The Claimant filed a Replying Affidavit through its Resident Manager Peter Kiarie sworn on 22nd February 2017. Its position is that the Claimant has paid the Respondents their salaries and service charge. Kiarie further states the Respondents disobeyed the Court order and went ahead with their sit-in in the presence of journalists whom they had invited to give coverage.

6. The Claimant also filed a Notice of Preliminary Objection against the Respondents’ Application. It is submitted that the grievances or complaints raised in the Application are localized and subject to the determination of the Coast Disputes Committee and or the Joint Industrial Council, under the Parties’ Recognition Agreement.

7. Parties agreed the 2 Applications and the Preliminary Objection are considered and determined on the strength of the record. They confirmed the filing of their Submissions at the last mention in Court, on 21st March 2017.

The Court Finds:-

8. There is no point in over-blowing this dispute. At the core is a grievance by the Employees about non-payment by the Employer, of their salaries and service charge. As a means of recovering what they think is owed to them, the Employees threatened to withhold their labour. The Employer instigated this Claim, to protect its business from the disruption that comes with such industrial upheavals.

9. The Claimant’s position is that the Respondents have been paid their salaries and service charge. The dispute is whether payment has been made or not. It is a dispute which can be resolved by the Labour Officer, investigating the employment records at Nyali Beach Hotel, in the presence of the representatives of the Management and KUDHEIHA, and ascertaining if salaries and service charge have been paid. If they have been paid then the dispute should resolve itself. If they have not been paid, then the Court suggests we try the following:-

a) The Labour Officer has the option of prosecuting the Claimant’s Management for wage offences.

b) The Respondents, if confirmed they are owed salaries and service charge, have the right to withdraw their labour, but only under the industrial action mechanisms and procedures contained in KUDHEIHA Constitution and the Recognition Agreement between KUDHEIHA and the Union of Kenya Hotelkeepers and Caterers Association, of which the Claimant is a Member.

c) The Labour Officer shall file his Report in Court detailing if salaries and service charge are owed, and the Respondents shall be at liberty to apply for summary judgment against the Claimant, based on the findings of the investigation.

d) The Court does not agree with the Claimant that the grievance raised through the Respondents’ application is localized and beyond the jurisdiction of the Court. Salaries and wages are protected and it is the duty of the Court throughout, to ensure they are paid when they fall due, and ensure offenders are punished under the Employment Act and the Labour Institutions Act. Why would the dispute raised by the Claimant fall within the jurisdiction of the Court, while that raised by the Respondents is deemed premature?

10. The right to industrial action is a useful tool in the hands of Employees, in enforcing employment rights. It should not be stifled. It is as good as the execution of a decree issued by the Court. It compels compliance. It should however be exercised within the confines of existing workplace labour contracts. Exercised otherwise, it becomes an out-law industrial action. Lastly, the Court wishes to emphasize that alternative dispute resolution mechanisms should not be manipulated to muddy, delay or deny Employees’ right to the toil of their labour. Salaries and wages must be paid when they fall due, unless the Employee has given his consent for deferment.

IT IS ORDERED:-

a) The order barring the Respondents from engaging in industrial action is extended for 40 days from the date of this ruling.

b) Proceedings before this Court are stayed for 40 days, and the dispute referred to the County Labour Office for investigation.

c) The County Labour Office shall, in the presence of Claimant’s Management and KUDHEIHA Officials examine Employees’ records at the Hotel, and find out if there are salaries and service charge owed.

d) At the end of 30 days the Labour Officer shall file his findings with the Court, and avail copies to the Parties, after which, depending on the findings, the Respondents may pursue industrial action under the procedure contained in their Unions’ Recognition Agreement and Constitution; the Labour Officer may prosecute Management for wage offences; or the Respondents apply in Court for summary Judgment of ascertained arrears of salary and service charge.

e) The 2 Applications and Objection filed by the Parties are disposed of on these terms.

f) Both Parties shall extract a copy of this Ruling and Order, and serve it upon the County Labour Office Mombasa.

g) Parties shall move the Court at the end of 40 days from the date of this Ruling.

h) Costs in the cause.

Dated and delivered at Mombasa this 12th day of June 2017.

James Rika

Judge