London Distillers (K) Limited v Kenya Union of Commercial Food and Allied Workers [2017] KEELRC 1318 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT

AT NAIROBI

CAUSE NO 1639 OF 2016

LONDON DISTILLERS (K) LIMITED...................................CLAIMANT

VERSUS

KENYA UNION OF COMMERCIAL

FOOD AND ALLIED WORKERS...................................RESPONDENT

RULING

1. This matter first came to Court on 16th August 2016 when the Claimant sought orders prohibiting the Respondent Union from calling its members to industrial action. Upon hearing Counsel for the Respondent ex parte I certified the matter urgent and set it down for inter partes hearing on 19th August 2016.

2. On 19th August 2016 the parties recorded the following consent;

a. That the Claimant would effect a 17% wage increment for the Respondent’s members for the year 2016/2017 with effect from 1st May 2016;

b. That the other terms would be negotiated and agreed upon within three (3) months;

c. That the negotiations would be facilitated by a new Conciliator to be appointed by the Chief Industrial Relations Officer;

d. That the Respondent would call off the strike by 23rd August 2016.

3. The Respondent subsequently complained that the Claimant had failed to implement the 17% wage increase for the following seventeen (17) employees:

i. Peter Miringu

ii. Stephen Lolori

iii. Josphat Okari

v. Richard Simiyu

v. Lameck Mogaka

vi. Jackson Ambunya

vii. Jairo Ambwere

viii. William Nyakundi

ix. Stephen Musyoka

x. James Kamundia

xi. Moses Mbinda

xii. Ernest Obati

xiii. Justus Opati

xiv. Simon Makori

xv. Dominic Kinywa

xvi. Joseph Kioko

xvii. Aaron Musyoka

xviii. Duke Onkware

xix. George Kimani

xx. Geoffrey Walela

xxi. Nelson Musasia

xxii. Calistus Wekesa

xxiii. Joseph Musyoka

xxiv. Samuel Gitau

xxv. Simon Mboga

xxvi. David A. Okore

xxvii. Harrison Tuti

4. On its part, the Claimant maintains that all the unionisable employees had been paid. In light of the divergent positions taken by the parties, I directed them to file submissions on this issue which is the subject of this ruling.

5. In the submissions filed by the Claimant on 6th March 2017, it is submitted that the 27 persons in issue are employees of Galot Estate and not the Respondent. The Claimant adds that Galot Estate was engaged in pre-recognition communication with the Union.

6. In support of its case the Claimant produced letters of appointment issued to the 27 persons on the letterhead of Galot Estate Kiambu. The Court however also saw pay slips issued by the Claimant to these same persons. The Claimant terms this as an administrative error.

7. The letters of appointment date between 1998 and 2015 while the pay slips date between 2016 and 2017. Without any substantive explanation of this inconsistency, the Court formed the opinion that as at the time this dispute arose the 27 persons were employees of the Claimant. This is buttressed by the submission by the Respondent, which the Claimant did not contest, that the 27 employees had benefited from the 1st instalment of the 17% wage increment prior to the dispute.

8. In light of the foregoing finding, the Claimant is directed to effect the 2nd instalment of the 17% wage increment in favour of the 27 employees within the next 30 days from the date of this ruling.

9. I make no order for costs.

10. Orders accordingly.

DATED SIGNED AND DELIVERED IN OPEN COURT AT NAIROBI THIS 26THDAY OF MAY 2017

LINNET NDOLO

JUDGE

Appearance:

Mr. Sang for the Claimant

Mr. Owiyo for the Respondent