Anthony Omondi,George Kioko Mativo,Festo Gogo,Masumbuko Kitsao,Jared Mwambeo & Misheck Maingi v Kenya Chemical and Allied Workers Union,W.D. Ogutu & H.Ochuodho [2018] KEELRC 2424 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR

RELATIONS COURT AT MOMBASA

CAUSE NUMBER 573 OF 2017

BETWEEN

1. ANTHONY OMONDI

2. GEORGE KIOKO MATIVO

3. FESTO GOGO

4. MASUMBUKO KITSAO

5. JARED MWAMBEO

6. MISHECK MAINGI ……………………………………CLAIMANTS

VERSUS

1. KENYA CHEMICAL AND ALLIED WORKERS UNION

2. W.D. OGUTU

3. H.OCHUODHO …………………....……………….RESPONDENTS

RULING

1. The Claimants filed an Application dated 14th July 2017, asking the Court to order the 3rd Respondent to avail an array of 1st Respondent’s records to the Claimants. The records include: wage book; payrolls; membership list; receipts; expenditure reports; approvals; bank statements; bank withdrawals; salary arrears; and pay returns.  The Claimants wish to inspect these records, pending hearing and determination of the Claim.

2. The Application is supported by the Affidavit of the 1st Claimant, Anthony Omondi, sworn on 14th July 2017.

3. The Application is opposed through a lengthy Replying Affidavit, sworn by the 2nd Respondent, on 24th July 2017.

4. On 30th October 2017, Parties’ Advocates scheduled the Application for hearing on 29th November 2017.

5. The Claimants and their Advocates did not attend Court on 29th November 2017.

6. Ms. Oluoch Wambi for the Respondents attended Court and submitted why, the Application should be rejected. She did not confine her reasons to the Claimants’ non-attendance.

7. In brief, the Respondents state that the Claimants did not indicate if they wished to inspect books of account at the Head Office in Nairobi, or Branch Office at Bamburi in Mombasa; the Claimants did not follow the prescribed inspection procedure under Section 44 of the Labour Relations Act 2007; the 1st Claimant was nonetheless invited by the Respondents to inspect documents, but instead of inspecting documents, wrote demand letter to the Respondents through Claimants’ Advocates; and lastly, the Respondents submit that the Claimants kept important letters from the Court, which were exchanged between the Parties on the dispute, prior to commencement of proceedings.

The Court Finds:-

8. The Respondents have shown sufficient reasons to enable the Court conclude, that the Application filed by the Claimants is frivolous and without merit. The 1st Claimant was invited by the Respondents to inspect documents. He failed to do so, and filed this unnecessary Application. Why should the Respondents be compelled to do that which they have not declined to do?

9. The Claimants did not attend Court to explain their position. The hearing date was taken with the consent of Parties’ Advocates.

10. The Application is technically flawed. It is presented as a Miscellaneous Application. There is a Claim registered as Cause Number 573 of 2017. Why should the Claimants file a Miscellaneous Application within a specific Claim?

11. For these reasons, the Application dated 14th July 2017 is rejected with costs to the Respondents.

Dated and delivered at Mombasa this 23rd day of February 2018.

James Rika

Judge