Mathenge & 16 others v Youth Enterprise Development Fund [2024] KEELRC 2027 (KLR)

Mathenge & 16 others v Youth Enterprise Development Fund (Cause 6544 of 2020) [2024] KEELRC 2027 (KLR) (2 August 2024) (Ruling)

Neutral citation: [2024] KEELRC 2027 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Nairobi

Cause 6544 of 2020

J Rika, J

August 2, 2024

Between

Daniel Mathenge

1st Claimant

Cleophas Omanyo

2nd Claimant

Edwin Njuga

3rd Claimant

Esther Mwatha

4th Claimant

Felistus Moraa

5th Claimant

Hussein Adan

6th Claimant

Isabella Kathambi

7th Claimant

Jemimah Muriuki

8th Claimant

Joram Murimi

9th Claimant

Josphat Maende

10th Claimant

Julius Ireri

11th Claimant

Kennedy Wawire

12th Claimant

Leonard Ochieng

13th Claimant

Morris Ondiek

14th Claimant

Peter Mulwa

15th Claimant

Samwel Njue

16th Claimant

Wilson Kahora

17th Claimant

and

Youth Enterprise Development Fund

Respondent

Ruling

1. This Court made a Ruling on 20th August 2021, directing the Respondent to revert to payment of salaries applicable to the Claimants, prior to the resolution of the Respondent’s 76th Full Board meeting.

2. The Court ordered that arrears of salaries be paid to the Claimants.

3. The Respondent’s CEO, Human Resource Manager and Payroll Officer were required to present themselves before the Court, to show cause why, they should not be punished for contempt, for failing to honour interim orders made in favour of the Claimants, on 11th December 2020.

4. The orders were challenged by the Respondent on Appeal, in Court of Appeal Civil Application No. E 317 of 2021.

5. On 1st November 2021, Parties consented before the Court of Appeal that the orders made by this Court on 20th August 2021, and all consequential orders are stayed; that the Appeal is filed within 30 days of the consent; and that Parties are at liberty to proceed with the substantive Claim before the E&LRC.

6. Parties then returned to the E&LRC where the Court was informed about attempts at voluntary settlement; about reinstatement of the Claimants under their original terms and conditions of service; and about reconstitution of the Respondent’s Board, whereof one of the Claimants is said to have assumed the role of the CEO.

7. The ground appears to have shifted significantly, but voluntary settlement, has not been registered before the Court.

8. On 7th December 2023, the Claimants applied for amendment of their Claim, to reflect the new developments.

9. It was agreed that the Application is considered and determined on the strength of the Parties’ Pleadings and Submissions. The Parties confirmed filing and exchange of their Submissions at the last mention before the Court, on 25th June 2024.

The Court Finds: - 10. This Court considered the issues in dispute and gave interim orders, whose execution, the Parties consented to stay, at the Court of Appeal.

11. They have indicated that there are developments which have taken place, having an effect on the substance of the dispute, and have time and again informed the Court of their intention to settle the dispute voluntarily.

12. Rule 38 of the E&LRC [Procedure] Rules, 2016, requires that the Court shall regulate and manage its own proceedings.

13. The applications made by the Parties, the orders obtained in this Court, and the orders subsequently obtained by consent at the Court of Appeal, create doubt in the mind of the Court, on its ability to continue regulating and managing its proceedings, and in the end give an objective outcome.

14. This is more so when the Court has ruled that one party has disobeyed its orders, and the Parties consequently proceeded on Appeal and consented to stay execution of those orders, and consented further, to return to this Court to prosecute the Claim.

15. How will the Trial Court Control its proceedings, if it is not certain that its orders shall be obeyed by the Parties?

16. Why did not the Parties consent before this Court on staying execution or setting aside, of its orders dated 20th August 2021? The Court must be able to control its proceedings, and determine Claims expeditiously.

17. The Court does not feel it should exercise its jurisdiction in the substantive dispute, while proceedings relating to its orders on the salaries of the Claimants, and on contempt proceedings, is the subject of appellate proceedings.

18. For these reasons, the Court shall recuse itself, and order that the Claim is placed before the presiding Judge Claims Division, for reassignment before another Judge.

It is ordered:- 149. a.The undersigned Judge hereby recuses himself from hearing the Claim.b.The Claim to be placed before the presiding Judge Claims Division, for reassignment before another Hon. Judge.

DATED, SIGNED AND RELEASED TO THE PARTIES ELECTRONICALLY AT NAIROBI, UNDER PRACTICE DIRECTION 6[2] OF THE ELECTRONIC CASE MANAGEMENT PRACTICE DIRECTIONS, 2020, THIS 2ND DAY OF AUGUST 2024. JAMES RIKAJUDGE