Clerk, County Assembly of Vihiga & Vihiga County Assembly Service Board v Abigael Nyandoya, Victor Chadiva , Fridah Mbati Mikali, Peter Kamisi Edemba & Byrum Angote [2015] KECA 68 (KLR)

IN THE COURT OF APPEAL

AT KISUMU

(CORAM: MARAGA, MUSIGA & GATEMBU, JJ.A)

CIVIL APPEAL NO. 8 OF 2015

BETWEEN

THE CLERK, COUNTY ASSEMBLY OF VIHIGA .................. 1ST  APPELLANT

VIHIGA COUNTY  ASSEMBLY SERVICE BOARD ...............2ND  APPELLANT

AND

ABIGAEL NYANDOYA ........................................................1ST  RESPONDENT

VICTOR CHADIVA .............................................................2ND  RESPONDENT

FRIDAH MBATI  MIKALI ................................................... 3RD  RESPONDENT

PETER KAMISI EDEMBA .................................................. 4TH RESPONDENT

BYRUM ANGOTE ……………..………………………… 5TH  RESPONDENT

(An Appeal from the ruling and or the orders of the Industrial Court at Kisumu

(Wasilwa, J.) dated 3  December, 2014

in

CLAIM NO. 295 OF 2014)

********************

JUDGMENT OF THE  COURT

1. This appeal  brings to the fore one of the teething  problems  the County Governments are  experiencing  as  they  settle down  into  the  devolved system of government.  Although listed as appellants the tag of war in this appeal is between the Clerk to the County Assembly of Vihiga (the 1st appellant) and the Vihiga County Assembly Service Board (the Service Board). The latter claimed it regularly employed the respondents while the former contends otherwise.

2. In  their  statement  of  claim  dated  3rd  November  2014,  the  respondents claimed  that  in  response  to  an  advertisement  in  the  local  media,  they applied for employment and were competitively recruited by the Service Board which  issued  them with letters of appointment  dated 28th March,2014. Despite that, the respondents claim that the appellants have barred them from accessing their places of work and have, to date, refused to pay them their  salaries. They  therefore  claim  a  declaration  that  they  are bonafide employees of Vihiga County Government entitled to work and be accorded all the benefits of employees of  Vihiga County Government.

3. In his response, the 1st appellant denied the respondents' claim asserting that they were irregularly engaged.

4. Contemporaneous  with the filing of their claim on 5thNovember, 2014, the respondents  filed a Notice of Motion dated 3rd November, 2014 in which they claimed payment of their salary arrears pending the determination of the claim

5. In her ruling dated 3rd December, 2014, Wasilwa , J. allowed the application and directed the appellants to forthwith pay the respondents salary arrears and benefits pending the hearing and determination of their claim. The learned Judge also ordered  the  1st appellant  to pay the costs of the suit. This appeal is against that ruling.

6. Arguing the appeal before us, Mr. Musiega, learned counsel for the 1st appellant,  faulted  the  learned  Judge  for  determining   the  entire  claim through the Notice of Motion before hearing the parties on the matter.  He said payment of salaries to the respondents plus cost of the suit would compromise  the  1st   appellant's  defence  in the claim  which  is yet to  be heard.  He therefore urged us to allow this appeal and set aside the learned Judge's said order.

7. The Service Board and the respondents did not appear before us during the hearing of the appeal.    As they had been served with the hearing notice, we saw no good reason for adjourning the matter and instead, we allowed counsel for the 1st appellant to argue the appeal ex-parte

8. Since this is an appeal against an interlocutory order arising from a claim which is still pending for hearing before the Employment and Labour Relations  Court, we are constrained  to say as little  as possible  lest  we compromise the hearing of the claim.  With this caveat in mind, having perused the record we agree with counsel for the 1st  appellant that allowing the  learned  Judge's  ruling  to  stand  will  compromise  the  1st   appellant's defence in the claim.  We say no more than that.  Consequently, we allow this appeal and set aside the orders of the learned Judge made on 3rd December, 2014.    The 1st appellant  shall  have the  costs  of this  appeal against the respondents.

DATED and delivered at Kisumu  this 3rd day of June, 2015.

D.K.MARAGA

............................

JUDGE OF APPEAL

D.K.MUSINGA

………………………………..

JUDGE  OF APPEAL

S. GATEMBU KAIRU FCIArb

…………………………………….

JUDGE  OF APPEAL

I certify that this is a

true copy of the original.

DEPUTY REGISTRAR