Gilbert Kasumari Kithi v Nyali Beach Holiday Resort Limited [2015] KEELRC 507 (KLR)

REPUBLIC OF KENYA

IN THE INDUSTRIAL COURT AT MOMBASA

CAUSE NUMBER 22 OF 2014

BETWEEN

GILBERT KASUMARI KITHI ………………………………………………………….CLAIMANT

VERSUS

NYALI BEACH HOLIDAY RESORT LIMITED..………………….……………….RESPONDENT

Rika J

Court Assistant: Benjamin Kombe

___________________________

Mr. Kenga Advocate instructed by  Kenga & Company Advocates for the  Claimants

Mr. Omwenga Advocate instructed by Mogaka Omwenga & Mabeya Advocates for the Respondent

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RULING

1. On 13th March 2015, the Court gave an Award in favour of the Claimant, for the total sum of Kshs. 898,461, comprising terminal dues and compensation for unfair termination.

2.  The Respondent filed an Application dated 31st March 2015 seeking to have the Award reviewed and set aside; or in the alternative, the decretal amount is deposited in a joint, interest-earning account in the name of the Advocates, pending hearing and determination of Mombasa Chief Magistrate’s Court Criminal Case No. 15 of 2015, in which the Claimant is an accused person.

3. The Application is supported by the Affidavit of Mr. Ratilal Shah, Respondent’s Director, sworn on 30th March 2015.  The Claimant filed a Replying Affidavit sworn on the 23rd April 2015, opposing the Application.  Parties agreed to have the Application considered and determined on the strength of these Affidavits and Submissions on record.

The Court Finds:-

4. The Application by the Respondent is based on the letter of employment relied on by the Claimant, in his successful Claim for terminal benefits and compensation.  The Respondent states this letter was forged.  It was not issued by the Respondent.  It should not have been relied upon.  The Claimant has since been arrested and charged in the Criminal Court, with regard to the letter.

5. This letter was dealt with by the Court in its decision specifically in paragraph 17 to 24 of the Award.  There is no reason for the Court to revisit, or interfere with its findings under the Award, with regard to the letter of employment.

6. The criminal proceedings, coming shortly after this Court concluded the hearing of the Claim before it, has no relevance to the concluded hearing.  The Claim was filed in February 2014.  Documents were exchanged last year.  Evidence on either side was scrutinized through cross-examination.  The Court had the opportunity to evaluate evidence, and invoked the relevant employment law, with respect to the letter of employment.

7. What the Parties do after the Court gave its decision has no bearing on the record.  IT IS ORDERED:-

a) The Application dated 31st March 2015 is rejected.

b) Costs to the Claimant.

Dated and delivered at Mombasa this 25th day of September, 2015

James Rika

Judge