Adan & 2 others (Suing on their Own Behalf and on Behalf of 76 other aggrieved Employees of the Respondent) v Wajir Wasco Limited alias Wajir Water & Sewerage Company Limited & another [2023] KEELRC 3226 (KLR)

Adan & 2 others (Suing on their Own Behalf and on Behalf of 76 other aggrieved Employees of the Respondent) v Wajir Wasco Limited alias Wajir Water & Sewerage Company Limited & another (Petition E076 of 2023) [2023] KEELRC 3226 (KLR) (7 December 2023) (Ruling)

Neutral citation: [2023] KEELRC 3226 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Nairobi

Petition E076 of 2023

B Ongaya, J

December 7, 2023

IN THE MATTER OF THE CONTRAVENTION OF FUNDAMENTAL RIGHTS AND FREEDOMS IN THE MATTER OF ARTICLES 1, 2, 10, 19, 20, 21, 22, 23 (3) 27, 28, 28, 29, 30, 41, 47 & 258 OF THE CONSTITUTION OF KENYA AND IN THE MATTER OF SECTION 4 OF THE FAIR ADMINISTRATIVE ACTION ACT NO. 4 OF 2015 AND IN THE IN THE MATTER OF SECTION 5 & 17 OF THE EMPLOYMENT ACT AND IN THE MATTER OF UNCONSTITUTIONALITY AND UNLAWFUL WITHHOLDING AND/OR STOPPAGE OF SALARY & BENEFITS OF THE EMPLOYEES OF THE WAJIR WASCO LIMITED

Between

Safi Abdullahi Adan

1st Petitioner

Abdi Jikre Mohamed

2nd Petitioner

Maryan Farah Salah

3rd Petitioner

Suing on their Own Behalf and on Behalf of 76 other aggrieved Employees of the Respondent

and

Wajir Wasco Limited alias Wajir Water & Sewerage Company Limited

1st Respondent

County Government of Wajir

2nd Respondent

Ruling

1. This Honourable Court in its ruling delivered on 25. 05. 2023 gave the following orders:a.The preliminary objection is dismissed with costs in the cause.b.That pending the hearing and determination of the petition, a conservatory order is hereby issued directing the 1st respondent and its agents to pay the petitioners together with other aggrieved employees all withheld salaries from the month of October, 2022 to date and further directing the 1st respondent to continue paying the petitioners and the aggrieved employees their salaries as and when the fall due without any further delay for as long as the respective contracts of service are in place.c.Parties to set down the petition for mention for directions for the expeditious hearing and determination.d.The costs of the application in the cause.

2. Subsequently, the petitioners through the firm of Kusow & Company Advocates filed a notice of motion application dated 12. 06. 2023. The application was under sections 12 & 13 of the Employment and Labour Relations Court Act; section 5 of the Judicature Act and all enabling provisions of the law. The application was based on the supporting affidavit of Safi Abdullahi Adan, the 1st petitioner herein. The application was for prayers:a.This application be certified urgent and heard ex-parte in the first instance for purpose of prayer No. 2 (Spent)b.This Honourable Court do issue summons to the Managing Director of the 1st Respondent herein one Roble Ahmend Subow to attend before the Court and show cause why he should not be cited and held in contempt for the willful and continued disobedience of the orders issued on 25th May, 2023 and committed to civil jail until the 1st Respondent has purged the contempt.c.This Honourable Court be pleased to find the 1st Respondent and its Managing Director in willful and continued contempt of the Court order issued on 25th May, 2023 and they are liable for punishment for contempt of court.d.Upon citation for contempt, the Managing Director of the 1st Respondent one Roble Ahmed Subow be committed to civil jail for a period of six months or to be punished in any other way the Court deems fit including payment of fine, suspension and/or removal from office for the willful disobedience of this Honourable Court’s order issued on 25th May, 2023. e.This Honourable Court do issue any other or further orders necessary to safeguard its authority, enforce its jurisdiction and advance the interest of justice.f.Costs of this application be provided for.

3. The application was based upon the following grounds:a.On 25th May, 2023, this Honourable Court determined the petitioners/applicants’ application dated 17th April, 2023 and ordered inter alia that;“pending the hearing and determination of the petition, a conservatory order is hereby issued directing the 1st respondent and its agents to pay the petitioners together with other aggrieved employees all withheld salaries from the month of October 2022 to date and further directing the 1st respondent to continue paying the petitioners and the aggrieved employees their salaries as and when the fall due without any further delay for as long as the respective contracts of service are in place.”b.When the ruling was delivered and the order issued, the advocates on record for the respondents were present in court and thus had knowledge of the order and by extension the 1st respondent.c.The order was duly extracted and again served on the respondent’s advocates on 26th May, 2023. d.The order was again served on the 1st respondent’s Managing Director both through WhatsApp and by affixing the order on the door of his office which was closed on 29th May, 2023. e.The Managing Director of the 1st respondent herein, one Roble Subow who is in charge of the management of human, financial and capital resources and operations of the 1st respondent and has contemptuously ignored compliance with the order by failing to pay all withheld salaries from October, 2022 to date as they fell due despite being served with the court order and further in spite of the fact that the petitioners and aggrieved employees attending to lawful duties.f.The terms of the Court order were clear and unambiguous and the 1st respondent and its agents had proper notice of the same and there is no justification for their disobedience of the order. If indeed the 1st respondent and its agents had a genuine difficulty in implementing the court order, noting precluded them from coming back to the court to seek a variation as would have been necessary and appropriate.g.The 1st respondent has paid salaries for May, 2023 to all other employees of the 1st respondent while contemptuously leaving out the petitioners and the aggrieved employees in violation of the court order.h.The court order is valid and still in force as it was neither stayed nor set aside and/or discharged.i.The 1st respondent’s conduct is contemptuous, deliberate and calculated to bring the court into disrepute and interfere with the rule of law and due administration of justice. The conduct undermines the authority and dignity of this Honourable Court and must be dealt with firmly.j.The 1st respondent’s disobedience of the court order continues to prejudice and devastate the petitioners and the aggrieved employees as the salaries are the sole source of their livelihood and they are unable to feed their families even as they report to work every day.k.Unless this Honourable Court takes a decisive step to stamp its authority, the Honourable Court will lose its credibility and the petitioners will suffer a great injustice and prejudice.l.It is in the interest of justice and the rule of law that this application be allowed.

4. In response to the application the 1st respondent filed a replying affidavit sworn by Roble Ahmed, its Managing Director on 24. 07. 2023, in which he avers that the 1st respondent, being aggrieved lodged an appeal to the Court’s ruling delivered on 25. 05. 2023 in the Court of Appeal being Civil Appeal No. E396 of 2023.

5. That the appeal was filed alongside an application for stay of execution of the Honourable Court’s ruling, which application is pending final determination as parties have filed their respective submissions to the application.

6. The 1st respondent denies willful disobedience to the court order and attributes failure of compliance on the lack of funds. The affiant maintains that it is funded directly by the 2nd respondent and is dependent on monies allocated to it.

7. In their brief rejoinder, the petitioner filed a supplementary affidavit sworn by Safi Abdullahi Adan, the 1st petitioner herein, on 1. 11. 2023. It was stated that the Court order was duly served and has not been complied with by the respondents as the petitioners and aggrieved employee’s salaries remain unpaid for more than one year since October 2022.

8. That the appeal lodged in the Court of Appeal does not justify the respondents’ disobedience as the appeal does not operate as an automatic stay and further that the application of stay of execution and proceedings was scheduled for highlighting of submissions on 18. 10. 2023 and the respondents were denied interim stay.

9. The petitioners state that in absence of any stay orders the Court’s Orders issued on 25. 05. 2023 stand, are in force and the continued failure to compliance is contemptuous and ought to be punished.

10. The petitioners further state that the appeal is not arguable and terms it as a delaying tactic curved to denying the applicants from enjoying the orders in place.

11. The Court has considered the parties’ respective submissions and material on record and determines the matters in dispute as follows.

12. To answer the 1st issue, the Court returns that the 1st respondent’s cited CEO does not deny knowledge of the Court orders. He has in fact confirmed that they have appealed against the ruling and orders said to have been disobeyed.

13. To answer the 2nd issue, while there is an application for stay of execution said to be pending before the Court of Appeal, there is no order of stay of execution pending appeal or stay of the proceedings herein.

14. To answer the 3rd issue, the reason advanced is that the respondents have not obeyed the Court orders is that they alleged they do not have the resources to pay. In the circumstances, while a finding for contempt might appear apparent, the 1st respondent is given an opportunity to file an affidavit showing the financial status and the steps taken to obtain the 2nd respondent’s approval and further, the steps taken to identify the ghost workers of the petitioners and other workers represented by the petitioners.

15. The Court further considers that the orders were directed at the 1st respondent and not its Managing Director. It should be possible to enforce the orders against the 1st respondent and the managing director to be cited only if shown he has by himself impeded the compliance with the orders. An order such as sequestration of the 1st respondent’s property or garnishee proceedings would be available. While service upon the CEO is sufficient evidence the 1st respondent company is aware of the orders, it should be possible to initiate direct execution against the company. No reason has been shown why the execution should not be directly against the 1st respondent.In conclusion, the application is hereby dismissed with costs.

SIGNED, DATED AND DELIVERED BY VIDEO-LINK AND IN COURT AT NAIROBI THIS THURSDAY 7TH DECEMBER, 2023. BYRAM ONGAYAPRINCIPAL JUDGE