Baya Nyonga Baya, Dall Mohammed Dalu, Joseph Mrichwa, Salimu Ismail Benjoma, Salim Mohamed Mgandi & John Chomba Gachoki v Steel Makers Limited [2019] KEELRC 206 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT MOMBASA

CAUSE NO 112 OF 2015

BAYA NYONGA BAYA…………….....…………………………1ST CLAIMANT

DALL MOHAMMED DALU………...…………………………2ND CLAIMANT

JOSEPH MRICHWA……………....……………………………3RD CLAIMANT

SALIMU ISMAIL BENJOMA………….………………………4TH CLAIMANT

SALIM MOHAMED MGANDI…….......………………………5TH CLAIMANT

JOHN CHOMBA GACHOKI…...........………………………….6TH CLAIMANT

VS

STEEL MAKERS LIMITED………..........………………………RESPONDENT

JUDGMENT

Introduction

1. The Claimants’ claim arises out of respective employment relationships between them and the Respondent.

2. The claim is documented by a Memorandum of Claim dated 2nd March 2015 and filed in court on 6th March 2015.

3. The Respondent filed a Response on 5th June 2015 but did not attend the trial in spite of due service. The 1st Claimant, Baya Nyonga Baya testified on his own behalf and on behalf of his co-claimants.

The Claimants’ Case

4. The Claimants state that they were employed by the Respondent on diverse dates between 1995 and 2013. They worked until 15th December 2014, when their employment was terminated.

5. The 1st, 2nd and 5th Claimants aver that they were employed as general workers and that at the time of termination, they were working as tongs men earning a daily wage of Kshs. 472. The 3rd and 4th Claimants state that they worked as general workers also earning a daily rate of Kshs. 472.

6. The 6th Claimant, John Chomba Gachoki withdrew his claim by notice dated 2nd June 2015.

7. Regarding the circumstances leading to the termination of their employment, the Claimants state that on 15th December 2014, they were informed not to report to work the following day as their services were no longer required. They were further told that since they had commenced legal proceedings against the Respondent on account of injuries sustained at work, the Respondent had no faith in them.

8. The Claimants’ case is that the termination of their employment was unlawful and unfair. They add that they were not paid their accrued dues. Their particular claims are as follows:

1st Claimant: Baya Nyonga Baya

a) One month’s pay in lieu of notice……………………………Kshs. 12,272

b)  Leave pay for 19 years……………………………………………………188,328

c) Years of service………………………………………………………………134,520

d) 12 months’ salary in compensation………………………………..147,264

2nd Claimant: Dall Mohamed Dalu

a) One month’s pay in lieu of notice……………………………Kshs. 12,272

b) Leave pay for 13 years……………………………………………………128,856

c) Years of service………………………………………………………………..92,040

d) 12 months’ salary in compensation………………………………..147,264

3rd Claimant: Joseph Mrichwa

a) One month’s pay in lieu of notice……………………………Kshs. 12,272

b) Leave pay for 11 years……………………………………………………109,032

c) Years of service………………………………………………………………..77,880

d) 12 months’ salary in compensation………………………………..147,264

4th Claimant: Salimu Ismail Benjoma

a) One month’s pay in lieu of notice……………………………Kshs. 12,272

b) Leave pay for 11 years……………………………………………………109,032

c) Years of service………………………………………………………………..77,880

d) 12 months’ salary in compensation………………………………..147,264

5th Claimant: Salim Mohamed Mgandi

a)  One month’s pay in lieu of notice……………………………Kshs. 12,272

b) Leave pay for 2 years……………………………………………………….19,824

c) Years of service………………………………………………………………..14,160

d) 12 months’ salary in compensation………………………………..147,264

9. The Claimants further ask for certificates of service as well as costs plus interest.

The Respondent’s Case

10. In its Response dated 5th June 2015 and filed in court on the same date, the Respondent states that the Claimants had from time to time been employed as casual workers.

11. The Respondent however denies having employed the Claimants as set out in the Memorandum of Claim. The Respondent further denies terminating the Claimants’ employment on 15th December 2014, on account of work injury claims filed by the Claimants.

Findings and Determination

12. There are two (2) issues for determination in this case:

a) Whether the Claimants have made out a case of unlawful termination;

b) Whether the Claimants are entitled to the remedies sought.

Unlawful Termination?

13. By its Response dated 5th June 2015, the Respondent makes an admission that the Claimants worked for it at some point but on casual basis.

14. At paragraph 6 of the Response, the Respondent pleads as follows:

“the Respondent states that it has never terminated the employment of the claimants and/or refused to employ them as casual workers save on days when there are no materials for production.”

15. The Respondent then goes ahead to make a general denial of the Claimants’ claim.

16. The Respondent did not seize the opportunity to cross examine the Claimants’ witness and did not call any witness. The Court is therefore left to glean the line of defence from the Response and supporting documents.

17. My understanding of the Respondent’s defence is that the Claimants were casual employees employed on need basis. Section 2 of the Employment Act defines a casual employee in the following terms:

“a person the terms of whose engagement provide for his payment at the end of each day and who is not engaged for a longer period than twenty four hours at a time.”

18. The Respondent did not present any credible evidence to support its assertion that the Claimants were casual employees. In this regard, the Court found the unsigned and unexplained sheets bearing the Claimants names to be of nil probative value.

19. In the result, the Respondent’s entire defence collapses, the corollary being a finding that the Claimants’ employment was unlawfully and unfairly terminated.

Remedies

20. Pursuant to the foregoing findings, the Claimants are entitled to compensation. Taking into account the respective periods of service, I award twelve (12) months’ salary to the 1st, 2nd, 3rd and 4th Claimants and four (4) months’ salary to the 5th Claimant in compensation.

21. I further award each Claimant one (1) month’s salary in lieu of notice.

22. In the absence of any evidence to the contrary, the claims for leave pay and service pay are allowed.

23. I therefore enter judgment in favour of the Claimants as follows:

1st Claimant: Baya Nyonga Baya

a) 12 months’ salary in compensation……………………………….Kshs.147,264

b) 1 month’s pay in lieu of notice…………………………………………..…….12,272

c) Leave pay for 19 years (12,272/30x21x19) ……………………………163,218

d) Service pay for 19 years (12,272/30x15x19) .…………………………116,584

Total……………………………………………………………………………439,338

2nd Claimant: Dall Mohamed Dalu

a) 12 months’ salary in compensation……………………………….Kshs.147,264

b) 1 month’s pay in lieu of notice……………………………………………..….12,272

c) Leave pay for 13 years (12,272/30x21x13) ……………………………111,675

d) Service pay for 13 years (12,272/30x15x13) .…………………………..79,768

Total……………………………………………………………………………350,979

3rd Claimant: Joseph Mrichwa

a) 12 months’ salary in compensation……………………………….Kshs.147,264

b) 1 month’s pay in lieu of notice……………………………………………..….12,272

c) Leave pay for 11 years (12,272/30x21x11) ………………………………94,494

d) Service pay for 11 years (12,272/30x15x11) .…………………………..67,496

Total……………………………………………………………………………321,526

4th Claimant: Salimu Ismail Benjoma

a) 12 months’ salary in compensation……………………………….Kshs.147,264

b) 1 month’s pay in lieu of notice……………………………………………..….12,272

c) Leave pay for 11 years (12,272/30x21x11) ……………………………......…94,494

d) Service pay for 11 years (12,272/30x15x11) .…………………………...........67,496

Total……………………………………………………………….......…………….321,526

5th Claimant: Salim Mohamed Mgandi

a) 4 months’ salary in compensation……………………………….Kshs….49,088

b) 1 month’s pay in lieu of notice……………………………………………..12,272

c) Leave pay for 2 years (12,272/30x21x2) ……………………………….…17,181

d) Service pay for 2 years (12,272/30x15x2) .……………………………….12,272

Total……………………………………………………………………………....90,813

24. These amounts will attract interest at court rates from the date of judgment until payment in full.

25. The Claimants are also entitled to certificates of service plus costs of the case.

26. Orders accordingly.

DATED SIGNED AND DELIVERED AT MOMBASA THIS 28TH DAY OF NOVEMBER 2019

LINNET NDOLO

JUDGE

Appearance:

Miss Mbithe for the Claimants

No appearance for the Respondent