Nashon Oliech Osieko, Raphael Muyonga, Rachel Mayaka & Imelda Nubia v Francis Ooko, Harun Kirui & Muhoroni Sugar Co Limited (In Receivership) [2021] KEELRC 1605 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT

AT KISUMU

PETITION NO. 25 OF 2021

IN THE MATTER OF CONTRAVENTION OF RIGHT TO FAIR LABOURRELATIONS,

FAIR ADMINISTRATIVE ACTION AND RIGHT AGAINSTINHUMAN

AND DEGRADING TREATMENT

BETWEEN

NASHON OLIECH OSIEKO...............................................................1st PETITIONER

RAPHAEL MUYONGA......................................................................2nd PETITIONER

RACHEL MAYAKA.............................................................................3rd PETITIONER

IMELDA NUBIA..................................................................................4th PETITIONER

v

FRANCIS OOKO................................................................................1st RESPONDENT

HARUN KIRUI..................................................................................2nd RESPONDENT

MUHORONI SUGAR CO LIMITED(In receivership).................3rd RESPONDENT

RULING

1. In a Petition lodged with the Court on 19 April 2021, the Petitioners alleged that the Respondents directed them to take annual leave in 2019, but when they resumed, they were instructed to return home and await further communication.

2. The Petitioners further contended that the Respondents stopped paying their salaries in November 2020 and that attempts to know the status of their employment has not been successful.

3. The action of the Respondents, the Petitioners asserted, amounted to unfair administrative action, unfair labour practice(s) and inhuman and degrading treatment.

4. On 18 May 2021, Imelda Nubia (the 4th Petitioner and now applicant) filed a Motion seeking orders:

(i)  spent

(ii)  spent

(iii) The Honourable Court be pleased to issue a conservatory order restraining the Respondents and/or their appointed agents from evicting the 4th Petitioner from the 3rd Respondents company house pending the hearing and determination of this Petition.

(iv) Costs of this application be provided for

5. The 1st Respondent filed a replying affidavit on behalf of the Respondents on 26 May 2021, and the applicant filed a supplementary affidavit on 27 May 2021.

6. Pursuant to Court directives, the Respondents filed their submissions on 10 June 2021 (applicant’s submissions were not on record).

Applicant’s case on the Motion

7. The applicant’s case, as gleaned from the Petition, affidavits and documents, is that despite her formal contract having lapsed on 31 December 2019, she was still an employee of the Respondent eligible for certain entitlements and benefits such as salary and housing because the Respondents had continued paying her salaries after 31 December 2019.

8. In this respect, the applicant produced a copy of her bank statement to show that the Respondents had paid her salary for May 2020.

9. The applicant also produced copies of emails to demonstrate that the Respondents had given her audit assignments in April 2020 as well as minutes of consultative meetings held under the chairmanship of the Federation of Kenya Employers on 8 July 2021 on her and the Petitioners employment status.

10. The applicant further asserted that the Respondents owed her over Kshs 750,000/- salary arrears.

The case for the Respondents

11. In the 1st Respondent’s replying affidavit, it was asserted that the applicant's fixed-term contract had expired on 31 December 2019, and in the circumstances, she was not entitled to accommodation at the Respondents expense.

12. According to the Respondents, they had allowed the applicant to enjoy the benefit of housing because of the unparalleled hardship caused by the outbreak of the COVID19 public health pandemic in early 2020.

Evaluation

13. The applicant entered into a fixed-term contract with the Respondents on 1 January 2019. The contract was to run until 31 December 2019 and indicated that it superseded any earlier contracts.

14. Despite the clear term of the contract, there is evidence before the Court that the Respondents continued to engage in some form of contractual engagements with the applicant after 31 December 2019, for which she was paid.

15. Whether the nature of engagement after 31 December 2019 would amount to a contract of service is a matter better left to trial.

16. Similarly, the determination of the question of whether the payment made to the applicant in May 2020 was a salary in consideration of employment cannot be made at this interlocutory stage being a disputable fact.

17. It is also not lost to the Court that the Respondents only gave a vacation notice to the applicant in May 2021, while they allege that the contractual relationship terminated in December 2019.

18. The Court is also cognisant of the possibility that the Respondents have a right to claim mesne profits from the applicant if they prove that her occupation of the company house after 17 May 2021 was(is) unlawful.

19. In light of the foregoing, the Court will allow the Motion and order:

(i) An injunctive order be and is hereby issued restraining the Respondents and/or their appointed agents from evicting the 4th Petitioner from the 3rd Respondent’s company house pending the hearing and determination of the Petition.

20. Costs to abide the determination of the Petition.

DELIVERED THROUGH MICROSOFT TEAMS, DATED AND SIGNED IN KISUMU ON THIS 14TH DAY OF JUNE 2021.

Radido Stephen, MCIArb

Judge

Appearances

For applicant Mr Nyamweya instructed by N.E. Mogusu & Co. Advocates

For Respondents Mr Masese instructed by the Federation of Kenya Employers

Court Assistant  Chrispo Aura