Lazarus Sindani & 14 others v Jiangxi Zhongmei Engineering Construction Company Limited [2018] KEELRC 1526 (KLR)
Full Case Text
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT KISUMU
CAUSE NO. 113 OF 2015
(Before Hon. Lady Justice Maureen Onyango)
LAZARUS SINDANI & 14 OTHERS.....................CLAIMANT
VERSUS
JIANGXI ZHONGMEI ENGINEERING
CONSTRUCTION COMPANY LIMITED.......RESPONDENT
JUDGMENT
This suit was filed by the 15 claimants vide claim dated 15th April 2015 and filed on 21st April 2015. The claimants aver that they were employed by the respondent, a contractor carrying out rehabilitation of the Kitale-Webuye Road, between 2012 and 2014. Their claim is for underpayments, lost hours, house allowance, NSSF/NHIF/PAYE and annual leave. Their total claim is for the sum of Kshs.9,932,177 costs and interest. The claims by each of the claimants is broken down as follows –
1ST CLAIMANT – LAZARUS SINDANI
1. Under payments Kshs.628,560/=
2. Lost hours Kshs.439,200/=
3. House Allowance Kshs.131,760/=
4. NSSF & NHIF Funds Kshs.15,600/=
5. Annual leave Kshs.58,560/=
TOTAL KSHS.1,273,680/=
2ND CLAIMANT – CHARLES JUMA
1. Under payments Kshs.628,560/=
2. Lost hours Kshs.439,200/=
3. House Allowance Kshs.131,760/=
4. NSSF & NHIF Funds Kshs.15,600/=
5. Annual leave Kshs.58,560/=
TOTAL KSHS.1,273,680/=
3RD CLAIMANT – CHRISTOPHER KARANJA NGUGI
1. Under payments Kshs.624,360/=
2. Lost hours Kshs.453,840/=
3. House Allowance Kshs.136,152/=
4. NSSF & NHIF Funds Kshs.16,120/=
5. Annual leave Kshs.58,560/=
6. Lost months (3) Kshs.87,876/=
7. One month notice in lieu Kshs.29,293/=
TOTAL KSHS.1,396,201/=
4TH CLAIMANT – JOHN OLOO ODONGO
1. Under payments Kshs.130,080/=
2. Lost hours Kshs.102,480/=
3. House Allowance Kshs.30,744/=
4. NSSF & NHIF Funds Kshs.3,640/=
TOTAL KSHS.266,844/=
5TH CLAIMANT – GORDON OCHIENG AMACHI
1. Under payments Kshs.37,162/=
2. Lost hours Kshs.46,896/=
3. House Allowance Kshs.14,068/=
4. NSSF & NHIF Funds Kshs.4,160/=
TOTAL KSHS.102,286/=
6TH CLAIMANT – JUSTUS SIEKISA CHAPURUKHA
1. Under payments Kshs.121,944/=
2. Lost hours Kshs.58,620/=
3. House Allowance Kshs.17,586/=
4. NSSF & NHIF Funds Kshs.5,200/=
TOTAL KSHS.203,350/=
7TH CLAIMANT – HEZRON WANJALA LUSWETI
1. Under payments Kshs.293,760/=
2. Lost hours Kshs.248,880/=
3. House Allowance Kshs.74,664/=
4. NSSF & NHIF Funds Kshs.8,840/=
5. Annual leave Kshs.29,280/=
TOTAL KSHS.655,424/=
8TH CLAIMANT – ZABLON MITEMA ARISI
1. Under payments Kshs.251,040/=
2. Lost hours Kshs.214,800/=
3. House Allowance Kshs.64,440/=
4. NSSF & NHIF Funds Kshs.10,400/=
5. Annual leave Kshs.29,480/=
TOTAL KSHS.562,160/=
9TH CLAIMANT – STEPHEN ANDAHI KIHUGWA
1. Under payments Kshs.244,020/=
2. Lost hours Kshs.182,580/=
3. House Allowance Kshs.54,744/=
4. NSSF & NHIF Funds Kshs.8,840/=
5. Annual leave Kshs.21,480/=
TOTAL KSHS.501,704/=
10TH CLAIMANT – JULIUS ROBIN NASONG’O
1. Under payments Kshs.42,156/=
2. Lost hours Kshs.52,758/=
3. House Allowance Kshs.15,822/=
4. NSSF & NHIF Funds Kshs.4,680/=
TOTAL KSHS.115,416/=
11TH CLAIMANT – DOUGLAS BARASA JUMA
1. Under payments Kshs.129,528/=
2. Lost hours Kshs.128,964/=
3. House Allowance Kshs.38,676/=
4. NSSF & NHIF Funds Kshs.11,440/=
5. Annual leave Kshs.11,724/=
TOTAL KSHS.320,332/=
12TH CLAIMANT – JOSPHAT N. MUKHWANA
1. Under payments Kshs.93,600/=
2. Lost hours Kshs.117,240/=
3. House Allowance Kshs.35,172/=
4. NSSF & NHIF Funds Kshs.10,400/=
5. Annual leave Kshs.11,724/=
TOTAL KSHS.268,136/=
13TH CLAIMANT – WYCLIFFE WAFULA MANG’OLI
1. Under payments Kshs.648,480/=
2. Lost hours Kshs.439,200/=
3. House Allowance Kshs.131,760/=
4. NSSF & NHIF Funds Kshs.15,600/=
5. Annual leave Kshs.58,560/=
TOTAL KSHS.1,293,600/=
14TH CLAIMANT – SIMON WAMALWA WAFULA
1. Under payments Kshs.374,640/=
2. Lost hours Kshs.244,800/=
3. House Allowance Kshs.73,440/=
4. NSSF & NHIF Funds Kshs.7,800/=
5. Annual leave Kshs.32,640/=
TOTAL KSHS.733,320/=
15TH CLAIMANT – JAMIN WANGILA SANGURA
1. Under payments Kshs.485,568/=
2. Lost hours Kshs.338,100/=
3. House Allowance Kshs.101,016/=
4. NSSF & NHIF Funds Kshs.11,960/=
5. Annual leave Kshs.29,400/=
TOTAL KSHS.1,293,600/=
The respondent did not file a response to the claim.
In view of the nature of claim, the number of employees involved and the sketchy documentation in the file, this matter together with several other cases filed by employees of the respondent were referred to the County Labour Officer Kitale to investigate and file a report in court.
In the County Labour Officer’s report dated 21st February 2017 he makes the following findings –
1. Christopher Karanja Ngugi
Mr. Ngugi was employed in December 2013 as a headman and left employment on October 2014. He was paid terminal dues amounting to Kshs.28,800/=.
2. John Oloo Ondongo
Mr. Odongo was engaged in April 2014 and left in November 2014 after working for five months only. He was paid wages in lieu of notice amounting to Kshs.6,500/=.
3. Gordon Ochieng Amachi
Mr. Ochieng Amachi was employed in July 2013 as a laboratory attendant and left employment in January 2014. He was paid his terminal dues which included wages and prorata leave, all amounting to Kshs.13,900/=.
4. Douglas Barasa Juma
Mr. Juma was employed in January 2013 as a general worker and left employment on 21st March 2015. He was paid all his terminal dues which included: -
- Wages - 10,045. 00
- Leave - 6,500. 00
- Service - 7,000. 00
Total 23,545. 00
The following workers are still in employment: -
1. Simon Wamalwa Wafula
2. Hezron Wanjala Lusweti
3. Wycliffe Wafula Mangoli
4. Lazaro C. Sindani
5. Charles Juma
6. Jamin Wafula Sang
7. Josphat N. Mukhwana
8. Julius Rolai Nasong’o
9. Stephen Andahi Kihugwa
10. Zablon Mitema Arisi
11. Justus Siekisa Chepurukha
Underpayment
The underpayments arrears as demanded by claimants is outrageous in the sense that the counsel calculated it basing on hourly rate which is not provided for in the Building and Construction Industry Wages Order. This order provides that employees in the category of drivers, artisans, general workers be paid on daily rate only. There is no provision for payment of wages on hourly rate.
Lost hours
Lost hours cannot be explained but it is assumed to be the overtime. This claim is not valid in the sense that all employees who worked extra hours were paid overtime and this can be validated through the records presented by the counsel to the court.
Refunds
N.S.S.F and N.H.I.F are statutory deductions which claimants cannot ask for refunds from employer. If the claimants have any sufficient reason to believe these deductions were not remitted then they can contact these organisations.
House Allowance
This issue can be considered after verification of records. Where it is found that some of these claimants were not paid house allowance, then the claimants can claim for the same to a maximum of 12 months.
A summary of the particulars of the claimants is contained in the table below: -
NAME ID TRADE STARTED TIME ENDED BEFORE RATE CURRENT RATE STATUS
1. Simon Wamalwa Wafula 20416202 Carpenter 08/2013
360 9,500 Working
2. Hezron Wanjala Lusweti 27728198 Carpenter 07/2013
440 18,000 Working
3. Wycliffe Wafula Mangoli 22716305 Carpenter 12/2013
400 10,000 Working
4. Lazaro C. Sindani 8045269 Mason 12/2013
376 10,000 Working
5. Charles Juma 25828897 Mason 12/2013
376 10,000 Working
6. Jamin Wafula Sang 10856145 Carpenter 01/2013
360 10,000 Working
7. Josphat N. Mukhwana 7986533 Labourer 03/2013
280 6,500 Working
8. Julius R. Nasong’o 13436369 Labourer 02/2014
248 6,500 Working
9. Stephen Andahi Kihugwa 25990817 Labourer 06/2013
296 720/DAY Working
10. Zablon Mitema Arisi 23241986 Labourer 03/2013
320 6,500 Working
11. Justus Siekisa Chepurukha 13660544 Labourer 01/2014
248 6,500 Working
12. Christopher Karanja Ngugi 22181827 Headman 12/2013 10/2014 480 12,000 Left
13. John Oloo Ondongo 32557244 Labourer 07/2013 10/2014 700 10,071 Left
14. Gordon Ochieng Amachi 9597004 Labourer 04/2014 11/2014 280 6,500 Left
15. Douglas Barasa Juma 23202031 Labourer 01/2013 03/2013 280 6,500 Left
The court directed the counsel for the claimants to make written submissions in respect of the report of the County Labour Officer on the basis of which judgment would be written.
In the written submissions, counsel for the claimant’s submitted that all the claimants were grossly underpaid their wages, that the claims are secured on an agreement reached between the respondent and the workers’ representatives on 13th September 2014 which was witnessed by the County Labour officer at Bungoma. That under the agreement employees would be paid according to the rates of pay in the Regulation of Wages (General) Order, that they would in addition be paid overtime and house allowance as provided by law.
On overtime it was submitted that the employees worked for 12 hours daily from 7 a.m. to 7 p.m. thus doing 4 hours overtime for 7 days every week including on rest days.
On annual leave it was submitted that the claimants were never allowed to go on leave. The prayers in respect to house allowance, NSSF, NHIF and PAYE were abandoned. The prayers for each of the claimants was revised as follows –
1ST CLAIMANT – LAZARUS SINDANI
Under payments Kshs.628,560/=
Lost hours Kshs.439,200/=
Annual leave Kshs.58,560/=
TOTAL KSHS.1,126,320/=
2ND CLAIMANT – CHARLES JUMA
Under payments Kshs.628,560/=
Lost hours Kshs.439,200/=
Annual leave Kshs.58,560/=
TOTAL KSHS.1,126,320/=
3RD CLAIMANT – CHRISTOPHER KARANJA NGUGI
Under payments Kshs.624,360/=
Lost hours Kshs.453,840/=
Annual leave Kshs.58,560/=
Pay in lieu of notice Kshs.29,293/=
TOTAL KSHS.1,166,053/=
4TH CLAIMANT – JOHN OLOO ODONGO
Under payments Kshs.130,080/=
Lost hours Kshs.102,480/=
TOTAL KSHS.232,560/=
5TH CLAIMANT – GORDON OCHIENG AMACHI
Under payments Kshs.37,162/=
Lost hours Kshs.46,896/=
TOTAL KSHS.84,058/=
6TH CLAIMANT – JUSTUS SIEKISA CHAPURUKHA
Under payments Kshs.121,944/=
Lost hours Kshs.58,620/=
TOTAL KSHS.180,564/=
7TH CLAIMANT – HEZRON WANJALA LUSWETI
Under payments Kshs.293,760/=
Lost hours/Overtime Kshs.248,880/=
Annual leave Kshs.29,280/=
TOTAL KSHS.571,920/=
8TH CLAIMANT – ZABLON MITEMA ARISI
Under payments Kshs.251,040/=
Lost hours Kshs.214,800/=
Annual leave Kshs.29,480/=
TOTAL KSHS.495,320/=
9TH CLAIMANT – STEPHEN ANDAHI KIHUGWA
Under payments Kshs.244,020/=
Lost hours Kshs.182,580/=
Annual leave Kshs.21,480/=
TOTAL KSHS.448,080/=
10TH CLAIMANT – JULIUS ROBIN NASONG’O
Under payments Kshs.42,156/=
Lost hours Kshs.52,758/=
TOTAL KSHS.94,914/=
11TH CLAIMANT – DOUGLAS BARASA JUMA
Under payments Kshs.129,528/=
Lost hours Kshs.128,964/=
Annual leave Kshs.11,724/=
TOTAL KSHS.270,216/=
12TH CLAIMANT – JOSEPHAT N. MUKHWANA
Under payments Kshs.93,600/=
Lost hours Kshs.117,240/=
Annual leave Kshs.11,724/=
TOTAL KSHS.222,564/=
13TH CLAIMANT – WYCLIFFE WAFULA MANG’OLI
Under payments Kshs.648,480/=
Lost hours Kshs.439,200/=
Annual leave Kshs.58,560/=
TOTAL KSHS.1,146,240/=
14TH CLAIMANT – SIMON WAMALWA WAFULA
Under payments Kshs.374,640/=
Lost hours Kshs.244,800/=
Annual leave Kshs.32,640/=
TOTAL KSHS.652,080/=
15TH CLAIMANT – JAMIN WANGILA SANGURA
Under payments Kshs.485,568/=
Lost hours Kshs.338,100/=
Annual leave Kshs.29,400/=
TOTAL KSHS.853,068/=
The claimants relied on the case of –
1. Evans Katiezo Aligulah -v- Eldomatt Wholesale and Supermarket Limited [2016] eKLR.
2. John Rioba Maugo -v- Riley Falcon Security Services Limited [2016] eKLR.
3. Kenya Guards and Allied Workers Union -v- Lavington Security Limited [2013] eKLR.
Determination
I have considered the pleadings in the claim, the report of the Labour Officer and the written submissions filed by the claimants. The only issue for determination is whether the claimants are entitled to underpayments, lost hours/overtime and annual leave. For the 3rd claimant Christopher Karanja Ngugi, there is a further prayer for pay in lieu of leave.
In the witness statements filed by the claimants they all do not state that they had left employment of the respondent except the 3rd claimant Christopher Karanja Ngugi who states he was dismissed on 7th November 2014 after the workers went on strike.
The claimants’ submissions also does not address the issue even though the report of the Labour Officer states that apart from Christopher Karanja Ngugi (3rd claimant), John Oloo Odongo (4th claimant), Gordon Ochieng Amachi (5th claimant) and Douglas Barasa Juma (11th claimant), all the other claimants were still in employment at the time the report was prepared on 21st February 2017.
I have confirmed that all the employees still in employment were not underpaid the basic salary which was as follows –
General Labourer
From Per Month Per Day
1-5-2011 4,047. 00 205. 15
1-5-2012 4,577. 20 232. 15
1-5-2013 5,218. 00 264. 50
Mason/Carpenter (Ungraded Artisan)
From Per Month Per Day
1-5-2011 7,811. 00 375. 30
1-5-2012 8,834. 20 424. 50
1-5-2013 10,071. 00 483. 95
All the grievants were either labourers, carpenters or masons. Only one was a headman whose rate of pay is not among the grades in the General Order.
Going by the Labour Institutions Act (Building and Construction Industry) (Wages) Order 2012 which was gazetted on 1st February 2013, the rates of pay are as follows –
Labourer Kshs.411. 00 per day
Ungraded Artisans Kshs.538. 00 per day
Junior headman Kshs.459. 00 per day
Senior headman Kshs.503. 00 per day
Based on the forgoing I do not find any proof of underpayment of the claimants in respect of basic pay.
On the prayer for annual leave, each of the grievants in service is entitled to 21 days per year as provided in Section 28 of the Employment Act. The respondent is directed to work out and pay all the claimants in lieu of all leave due up to the date of filing suit on 21st April 2015.
On the prayer for salary in lieu of notice of Christopher Karanja Ngugi, no evidence was adduced on how he left employment. There is therefore no proof that he is entitled to pay in lieu of notice and the clam is dismissed.
DATED AND SIGNED AT NAIROBI ON THIS 5TH DAY OF JUNE 2018
MAUREEN ONYANGO
JUDGE
DATED AND DELIVERED AT KISUMU ON THIS 5TH DAY OF JULY 2018
MATHEWS NDERI NDUMA
JUDGE