Samson Arap Bii, Charles K Chepkwony, Simon Malei, Paul Bii, David Keter, Grace Chepkemoi, Ann Chepkoech, Helen Chepkorir, Alice Chelegat & Jane Chepchirchir v Benard Kiplagat Kilele t/a North Njoro Farm, Ronald Kipngetich Kilele & Anne Naanyu Kilele [2015] KEELRC 1133 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAKURU

CAUSE NO. 262 OF 2013

SAMSON ARAP BII                                                          1ST CLAIMANT

CHARLES K. CHEPKWONY                                              2ND CLAIMANT

SIMON MALEI                                                                 3RD CLAIMANT

PAUL BII                                                                          4TH CLAIMANT

DAVID KETER                                                                  5TH CLAIMANT

GRACE CHEPKEMOI                                                        6TH CLAIMANT

ANN CHEPKOECH                                                            7TH CLAIMANT

HELEN CHEPKORIR                                                         8TH CLAIMANT

ALICE CHELEGAT                                                         9TH CLAAIMANT

JANE CHEPCHIRCHIR                                                  10TH CLAIMANT

v

BENARD KIPLAGAT KILELE

t/a NORTH NJORO FARM                                          1ST RESPONDENT

RONALD KIPNGETICH KILELE                                 2ND RESPONDENT

ANNE NAANYU KILELE                                             3RD RESPONDENT

RULING

1.            The 10 Claimants jointly sued the 1st Respondent on 16 August 2013 alleging wrongful dismissal and seeking salary arrears and damages. The 1st Respondent filed a Response on 26 September 2013.

2.            On 21 February 2014, the Claimants filed an application seeking to join Ronald Kipngetich Kilele and Ann Naanyu Kilele as third parties. Ongaya J allowed the application and ordered that the 2 persons be added as Respondents. Consequently, an Amended Memorandum of Claim was filed on 10 March 2014.

3.            On 3 April 2014, the Claimants filed an application seeking restraining orders against the Respondents from interfering with their stay in certain parcels of land. The orders were granted on the same day.

4.            On 11 April 2014, the 2nd Respondent filed a Response while the 3rd Respondent entered appearance on 30 April 2014.

5.            The 3rd Respondent filed a Response and Notice of Preliminary objection on 16 May 2014 questioning the jurisdiction of the Court and alleging misjoinder.

6.            On 20 May 2014, Ongaya J after hearing the application dated 2 April 2014 ordered that the status quo be maintained and that the main suit be heard on 3 December 2014.

7.            On 3 December 2014, the Claimants sought and were granted leave again to file an Amended Claim before 18 December 2014, and the Respondents were directed to file amended Responses before 14 January 2015.

8.            On 19 January 2015, the Claimants retracted and informed the Court that an Amended Memorandum of Claim had been filed on 10 March 2014. They sought a hearing date and the Court fixed hearing for 7 December 2015.

9.            On 19 February 2015, the Claimants purported to file a Further Amended Memorandum of Claim in which a 4th Respondent was included.

10.         The Further Amended Memorandum of Claim was filed outside the agreed timelines and without leave and the Court suo moto strikes it out.

11.         On 24 February 2015, the Claimants filed a motion seeking

1….

2. THAT the Respondents by themselves, their agents, servants, employees, representatives and persons claiming under them as purchasers and/or third parties be permanently restrained from interfering with the Claimants/Applicants peaceful stay or in any way threatening or intimidating them pending the hearing and determination of the matter at High Court Industrial Cause No. 263/13 which has been set down for hearing on 7th December 2015.

3. THAT the Claimants be allowed to continue cultivating the parcels allocated to them during their employment pending the hearing and determination of the main cause.

4. THAT pending the hearing and determination of this application inter partes, a temporary restraining order be granted and the Claimants be allowed to plant their crops on portions allocated to them during their employment.

5. ….

12.         The Court certified the motion urgent on 24 February 2015, and directed that it be served for inter partes hearing. It was heard on 17 March 2015.

13.         After being served with the motion, the 1st and 2nd Respondents filed a Notice of Preliminary Objection on 16 March 2015.

14.         On 17 March 2015, Mirugi Kariuki & Co. Advocates filed a Notice of Appointment for one Lawrence Karani Silas as an Interested Party.

Claimants’ case on the motion

15.         The Claimants case is that a consent order was entered between the parties on 20 May 2014 in which the Claimants were to continue cultivating and occupying the housing accommodation on the land they used prior to filing of the suit pending the determination of this suit.

16.         According to the Claimants, they had an employer/employee relationship with the 1st and 2nd Respondents which was unfairly terminated and they had not been paid their pending dues and that one Gathee was interfering with their peaceful occupation and use of the land parcels.

17.         Mr. Ogeto who took the 1st and 2nd Respondents case submitted that there was a consent order in place which protected the Claimants and any violation could be redressed using the normal procedures.

18.         Mr. Karanja took the Interested Party’s (one Lawrence Karani Silas) case. He submitted that the consent was not binding upon the Interested Party and that the Claimants had no claim over the land, the employment relationship having come to an end in 2003. He further submitted that the application was not founded on any law.

Evaluation

19.         Order 2 of the motion as sought cannot be granted. It is not the practice to grant permanent orders at an interlocutory stage. The Claimants have not demonstrated any exceptional circumstances to warrant the grant of a permanent injunction.

20.         As regards orders 3 and 4 of the motion, the Court has perused the record and confirmed that Ms. Agimba for the Claimant and Mr. Ogeto for the 1st and 2nd Respondents consented to an order being entered in the following terms

a) THAT the status quo be maintained so that the claimants continue cultivating and occupying housing accommodation on the land they used prior to filing the suit and until determination and disposal of the case.

b) THAT the Chief of the area in which the land in issue is to assist in implementation of the order (1) above

c)……

d)…..

21.         It is clear from the consent order that the Claimants were to continue in occupation of the land. At the time of the consent order, the parties did not disclose that any third party (Gathee or Lawrence Karani Silas) had an interest in the land. The Respondents were in a position at the time to know whether they had entered into any dealings with a third party.

22.         The interests of the Third party have not been disclosed. The Court cannot speculate on whether such interest is legal, beneficial or inchoate or at all.

23.         The consent order of 20 May 2014 is still in place and it will serve no purpose to grant orders 3 and 4 of the motion.

24.         Further the said Mr. Gathee or Lawrence Karani Silas are not parties to the present Cause and it would be unjust/unfair to make orders against them without affording them an opportunity to be heard.

25.         If the consent order is breached, the Claimants should seek redress as by law contemplated against the parties in breach.

26.         The motion is therefore dismissed with costs to the Respondents.

27.         Mr. Karanja for the Interested party should consider the options available if the Interested party wants to participate in the proceedings herein.

28.         The parties should also consider the ruling in Nakuru Cause No. 329 of 2014, Benard Mukolwe & 122 Ors v Karuturi Ltd (in receivership) & 4 Ors on an entitlement to accommodation when the employment relationship has ended.

Delivered, dated and signed in Nakuru on this 8th day of May 2015.

Radido Stephen

Judge

Appearances

For Claimants                                    Mr. Bosire instructed by SM Nyagaka & Co. Advocates

For 1st and 2nd Respondents            Mr. Ogeto instructed by Ogeto & Ogeto Advocates

For 3rd Respondent                            W.G. Wambugu & Co. Advocates

Nixon                                                    Court Assistant