[2022] KEELRC 1412 (KLR)
The court found that the claimants failed to provide evidence of the days worked, the rate of daily wages, and the amounts allegedly unpaid. Special damages, such as unpaid wages, require strict proof, which was not provided by the claimants. The respondents did not fully participate in the hearing or file final...
Source-derived case information.
- Citation
- [2022] KEELRC 1412 (KLR)
- Parties
- Applicant: Diana Nyiva; Applicant: Mercy Mwende; Applicant: Lilian Okeyo; Applicant: Amir Khamis; Applicant: James Shikala; Applicant: Nicholas Karisa; Applicant: Ruth Sally; Applicant: Lennox Kahindi; Applicant: Bernard Wanyama; Applicant: Rotan Ojango; Applicant: Mary Wambui; Applicant: Geoffrey Bosire; Applicant: Francis Muthee; Applicant: Kennedy Mwango; Respondent: Insulae Africana Limited; Respondent: Pangoni Hotels And Resort Ltd; Respondent: Pangoni Beach
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Cause 969 of 2016
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- suit dismissed
- Judges
- B Ongaya
- Legal Topics
- Casual Employment, Unfair Termination, Terminal Dues, Burden of Proof
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Diana Nyiva
Applicant
Mercy Mwende
Applicant
Lilian Okeyo
Applicant
Amir Khamis
Applicant
James Shikala
Applicant
Nicholas Karisa
Applicant
Ruth Sally
Applicant
Lennox Kahindi
Applicant
Bernard Wanyama
Applicant
Rotan Ojango
Applicant
Mary Wambui
Applicant
Geoffrey Bosire
Applicant
Francis Muthee
Applicant
Kennedy Mwango
Applicant
Insulae Africana Limited
Respondent
Pangoni Hotels And Resort Ltd
Respondent
Pangoni Beach
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the claimants were unfairly and wrongfully terminated from employment.
- 2 Whether the claimants are entitled to unpaid wages and terminal dues as claimed.
- 3 Whether the respondents are liable for the claims made by the claimants.
Ratio Decidendi
The court found that the claimants failed to provide evidence of the days worked, the rate of daily wages, and the amounts allegedly unpaid. Special damages, such as unpaid wages, require strict proof, which was not provided by the claimants. The respondents did not fully participate in the hearing or file final submissions, but the burden of proof remained with the claimants. As a result, the court dismissed the claimants' suit for lack of evidence and ordered each party to bear its own costs.
Court Disposition
suit dismissed
Orders
- The claimants' suit is dismissed.
- Each party shall bear its own costs.
Full Case Text
Judgment text and source record
52 paragraphs
Nyiva & 13 others v Insulae Africana Limited & 2 others (Cause 969 of 2016) [2022] KEELRC 1412 (KLR) (13 May 2022) (Judgment)
Neutral citation: [2022] KEELRC 1412 (KLR)
Republic of Kenya
In the Employment and Labour Relations Court at Mombasa
Cause 969 of 2016
B Ongaya, J
May 13, 2022
Between
Diana Nyiva
1st Claimant
Mercy Mwende
2nd Claimant
Lilian Okeyo
3rd Claimant
Amir Khamis
4th Claimant
James Shikala
5th Claimant
Nicholas Karisa
6th Claimant
Ruth Sally
7th Claimant
Lennox Kahindi
8th Claimant
Bernard Wanyama
9th Claimant
Rotan Ojango
10th Claimant
Mary Wambui
11th Claimant
Geoffrey Bosire
12th Claimant
Francis Muthee
13th Claimant
Kennedy Mwango
14th Claimant
and
Insulae Africana Limited
1st Respondent
Pangoni Hotels And Resort Ltd
2nd Respondent
Pangoni Beach
3rd Respondent
Judgment
1. The claimants filed the memorandum of claim on 22. 12. 2016 through Kitonga Kiiva Advocate of Kituo Cha Sheria. The claimants pleaded as follows. They were employed by the respondent on casual basis and whose particulars are known to the parties. Their respective contracts were terminated without notice and it was unfair and because their terminal dues were as well not paid at all. Each claimant prays for unpaid wages for days worked but not paid particulars of which are set out in the memorandum of claim. They prayed for judgment against the respondents for:a.An order compelling the respondent to pay the claimants all their dues as calculated in the memorandum of claims and all pending statutory dues.b.The respondent to issue a certificate of service to each claimant.c.Damages for unfair and wrongful termination.d.Costs of the suit.
2. The 2nd to 13th claimants signed authorising the 1st claimant to swear the verifying affidavit, any further affidavits and to make statements in support of the claims.
3. The 1st, 2nd and 3rd respondents reply and defence was filed on 07. 02. 2017 through Kosgey & Masese Advocates. The 1st respondent admitted that it employed the claimants as casuals and they were fully paid for the periods served. The 1st respondent denied the claims and stated that the contracts were lawfully terminated and all dues to various claimants were duly paid.
4. The 2nd and 3rd respondents pleaded that they were not party to the oral contracts of service between the 1st respondent and the claimants so that they were therefore non-suited. The 1st respondent denied the amounts of wages and claims made and that the claimants were ambiguous on the respondent they were seeking relief from. The 2nd and 3rd respondents pleaded that they were strangers to the claims and prayers made for the claimants. The respondents prayed that the suit be dismissed with costs.
5. The respondent did not call a witness and despite opportunity, did not file final submissions. The claimants’ witness was Amri Khamis (CW). The testimony was that the respondent (without being specific of which of the three respondents) employed the claimants who worked and had not been paid the terminal dues.
6. The Court has considered the pleadings, the testimony by CW and final submissions and returns that the claimants have failed to provide evidence of the days worked and not paid and the rate of daily wages as pleaded. The Court returns that the special damages as pleaded in wages allegedly not paid required strict proof but which was not provided. The respondents failed to fully participate in the hearing and did not file final submissions. Each party will therefore bear own costs of the suit.
7. In conclusion judgment is hereby entered for the respondents against the claimants for dismissal of the suit with orders each party to bear own costs of the suit.
SIGNED, DATED AND DELIVERED BY VIDEO-LINK AND IN COURT AT MOMBASA THIS FRIDAY 13TH MAY, 2022. BYRAM ONGAYAJUDGE