MARY NJERI V EDUCATION CENTRE FOR WOMEN IN DEMOCRACY [2013] KEELRC 351 (KLR)

REPUBLIC OF KENYA

Industrial Court of Kenya

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MARY NJERI………………………………............................……………………….. CLAIMANT

VERSUS

EDUCATION CENTRE FOR WOMEN IN DEMOCRACY……………………RESPONDENT

RULING

The Respondent made an application dated 18th March 2013, seeking to have the Award delivered on 22nd January 2013 set aside, and the Respondent allowed to prosecute its case.

The Claimant closed her case on 27th June 2012, more than one year ago. The Respondent was scheduled to bring its witnesses on 27th November 2012. It failed to do so. There was no communication to the Court or to the Claimant’s Advocates. The Court brought proceedings to a close, and gave its Award on 22nd January 2013.

The Respondent’s Advocate explains that the default in attending Court was not deliberate. Secondly, there was a fire in an adjacent building to his Law Firms’ premises, and some of his files were damaged by water used in putting out the fire. Thirdly, he explains that the Respondent has a good defence.

Beginning with this last ground, the Court considered all the grounds raised by the Respondent in its statement of Response, before reaching a finding that the Respondent had deliberately withheld the Claimant’s salary. It was the view of the Court that the Respondent violated the provisions of Sections 17 and 18 of the Employment Act 2007, which make it a criminal offence for an employer to detain the salary of an employee. An employer who is found to be in continuous violation of the wage protection provisions, cannot possibly have a good defence in a claim for payment of the very wages.

There is no credible link between the fire that occurred in a building adjacent to the Respondent’s Advocates’ Chambers, and the failure by the said Advocates to attend Court. It has not been demonstrated the Respondent’s file was destroyed in the fire, or even that the Respondent’s Advocates’ Court Diary was destroyed in the fire, or the water. The fire theory is unconvincing, and is rejected. The date for hearing on 27th November 2012 was taken by an Advocate instructed by the Respondent’s Advocates. The Claimant was absent when the date was taken. The Respondent served the Claimant’s Advocates, who attended on 27th November 2012, when the proceedings were brought to an end. The fire incident took place on 4th January 2013, and is indeed not a relevant factor in the history of this dispute.

The Court finds no reason to warrant interference with the Award on record. The application dated 18th March 2013 is declined, with no order on the costs.

Dated and delivered at Nairobi this 9th day of May 2013

James Rika

Judge

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