Joseph Kamau Mwangi, Nancy Wanjiku Kimondo, Mercy Njoki Chege, Humphrey Lisamadi Egaba, Job Omwando Moega, Ronah Wawira Murithi, Maureen Amondi Omusi, Patricia Kanini Muli, Emma Wanjiru Ndungu, Joseph Maina Karanja & Douglas Murithi Njeru v Club Click City, Jackson Maina, John Njuguna, George Gitonga & Sammy Gitonga [2018] KEELRC 322 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI

CAUSE NO 1848 OF 2013

JOSEPH KAMAU MWANGI......................................1ST CLAIMANT

NANCY WANJIKU KIMONDO................................2ND CLAIMANT

MERCY NJOKI CHEGE...........................................3RD CLAIMANT

HUMPHREY LISAMADI EGABA...........................4TH CLAIMANT

JOB OMWANDO MOEGA........................................5TH CLAIMANT

RONAH WAWIRA MURITHI...................................6TH CLAIMANT

MAUREEN AMONDI OMUSI..................................7TH CLAIMANT

PATRICIA KANINI MULI........................................8TH CLAIMANT

EMMA WANJIRU NDUNGU....................................9TH CLAIMANT

JOSEPH MAINA KARANJA..................................10TH CLAIMANT

DOUGLAS MURITHI NJERU................................11TH CLAIMANT

VS

CLUB CLICK CITY...............................................1ST RESPONDENT

JACKSON MAINA................................................2ND RESPONDENT

JOHNNJUGUNA...................................................3RD RESPONDENT

GEORGE GITONGA.............................................4THRESPONDENT

SAMMY GITONGA..............................................5TH RESPONDENT

JUDGMENT

Introduction

1. By a Memorandum of Claim dated 18th November 2013 and filed in court on 20th November 2013, the Claimants have sued the Respondents for unlawful termination of employment. Only the 3rd Respondent entered appearance and filed a Response. At the hearing, there was no representation for the Respondents. The 1st Claimant, Joseph KamauMwangi testified on his own behalf and on behalf of his co-claimants.

The Claimants’ Case

2. The Claimants state that they were employed by the Respondents verbally as Head Cook, Security Bouncer, Waiters, Waitress and Hygiene from 1st July 2009 until 30th September 2013 when their employment was terminated verbally on account of redundancy.

3. The Claimants state that the Respondents failed to pay their salaries for the months of August and September 2013 after closing the business and declaring them redundant.

4. The Claimants’ case is that the termination of their employment on account of redundancy without notice and without benefits was unlawful and unfair.

5. The Claimants claim the cumulative sum of Kshs. 2,977,879 made up of:

a. 12 months’ salary in compensation;

b. 1 month’s salary in lieu of notice;

c. Prorata leave for 1 year;

d. Severance pay for the years worked;

e. Salary for August and September 2013;

f. Salary underpayment for the years worked;

g. House allowance.

6. The Claimants also ask for costs of the case.

The 3rd Respondent’s Case

7. In his Memorandum of Response dated 27th January 2013 and filed in court on 28th January 2013, the 3rdRespondent denies that he had employed any of the Claimants. He further denies terminating their employment or failing to pay their August and September 2013 salaries.

8. The 3rd Respondent therefore avers that he is a stranger to the Claimants’ claims.

Findings and Determination

9. In their Memorandum of Claim, the Claimants plead that they were employed by all the five Respondents. However, in his testimony before the Court, the 1st Claimant, Joseph Kamau Mwangi stated that they were employed by the 1st Respondent in which the 2nd – 5th Respondents were Directors. Mwangi further testified that by the time of filing suit, the 1st Respondent had closed down. They were therefore pursuing their claim against the Directors.

10. In his Memorandum of Response, the 3rd Respondent denied having an employment relationship with the Claimants.

11. The Claimants’ did not produce any documentary evidence to confirm that the 2nd – 5th Respondents were indeed Directors of the 1st Respondent. The result is that the Claimants failed to establish an employment relationship between themselves and the Respondents.

12. The Claimants’ claims are therefore without basis and are dismissed with no order for costs.

13. Orders accordingly.

DATED AND SIGNED AT MOMBASA THIS 17THDAY OF DECEMBER 2018

LINNET NDOLO

JUDGE

DELIVERED AT NAIROBI THIS 20TH DAY OF DECEMBER 2018

MAUREEN ONYANGO

JUDGE

Appearance:

Mr. Kandere for the Claimant

No appearance for the Respondents