Samuel Kipngetich Korir , Guleth Bule Hassan, Victor Githiomi, Edwin Kiprotich Chumo, David K. Burusei, Eliud Galenywa Mwanzi, Joshua Barasa Karani v Jiangixi Zhognmei Engineering Construction Company Limited [2018] KEELRC 2019 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT

AT KISUMU

CAUSE NO. 145 OF 2015

(Before Hon. Lady Justice Maureen Onyango)

SAMUEL KIPNGETICH KORIR

GULETH BULE HASSAN

VICTOR GITHIOMI

EDWIN KIPROTICH CHUMO.............................CLAIMANTS

DAVID K. BURUSEI

ELIUD GALENYWA MWANZI

JOSHUA BARASA KARANI

VERSUS

JIANGIXI ZHOGNMEI ENGINEERING

CONSTRUCTION COMPANY LIMITED............RESPONDENT

JUDGEMENT

The claimants are all male adults who worked for the respondents during the construction of Webuye – Kitale Road.  They were all not issued with any letters of appointment.

By the claim dated 27th May 2015 they allege that they were engaged by the respondent for periods ranging from 13 to 29 months as set out below.

1. Samuel Kipngetich Korir – 15 months

2. Gulei Bule Hassan – 29 months

3. Victor Githiomi – 29 months

4. Edwin Kiprotich Chumo – 18 months

5. David K. Barusei – 19 months

6. Eliud Galenywa Mwanzi – 22 months

7. Joshua Barasa Karani – 13 months

The claimants seek payment of the following from the respondents:-

1st claimant – Samuel Kipngetich Korir

Underpayment                  401,600/=

Lost hours/overtime          315,000/=

House allowance                94,500/=

NSSF & NHIF Funds          7,800/=

PAYE                                 13,484/=

Annual leave                       42,000/=

Total                               874,384/=

2nd claimant – Guleth Bule Hassan

Underpayment                 709,600/=

Lost hours/overtime        609,000/=

House allowance             182,700/=

NSSF & NHIF Funds          15,080/=

PAYE                               13,484/=

Annual leave                      84,000/=

Total                                  1,613,864/=

3rd claimant – Victor Githimomi

Underpayment            709,600/=

Lost hours/overtime          609,000/=

House allowance               182,700/=

NSSF & NHIF Ffunds        15,080/=

Annual leave                            84,000/=

Total                                  1,613,864/=

4th claimant – Edwin Kiprotich Chumo

Underpayment              470,400/=

Lost hours/overtime        378,000/=

House allowance              113,400/=

NSSF & NHIF Funds          9,360/=

PAYE                                  6,233/=

Annual leave                      42,000/=

Total                                  1,019. 393/=

5th claimant – David K. Burusei

Underpayment             518,400/=

Lost hours/overtime       399,000/=

House allowance           119,700/=

NSSF & NHIF Funds       9,880/=

PAYE                              6,457/=

Annual leave                42,000/=

Total                         1,095,437/=

6th claimant – Eliud Galenywa Mwanzi

Underpayment               633,600/=

Lost hours/overtime        462,000/=

House allowance            138,600/=

NSSF & NHIF Funds    11,440

Annual leave              42,000/=

Total                          1,287,640/=

7th claimant – Joshua Barasa Karani

Underpayment           345,000/=

Lost hours                       315,000/=

House allowance              81,900/=

NSSF & NHIF Funds         6,760/=

Annual leave                     42,000/=

Total                               770,660/=

The respondent did not file any response to the claim.

On 23rd May 2016 I referred the claim to the County Labour Office, Trans Nzoia County to investigate and prepare a report to assist the court in determination of the claim.  The report of the County Labour Office was filed in court on 5th October 2016 in which he made the following findings:-

Samuel Kipngetich Korir

Samuel K. Korir was employed in July 2013 as a tipper driver earning Kshs.600 per day until 11/07/2015 when he terminated his employment with the company.  On termination he was paid the following terminal dues which he received and confirmed that he had no further claim against his former employer.  The dues were:-

Salary                      26,259/=

Service gratuity        20,972/=

Accrued leave           19,474/=

Total                        66,705/=

Hours of work

In my investigation, I found out that Mr. Samuel K. Korir used to work hours over and above the normal daily working hours and these were recorded in the job cards and paid as overtime therefore the issue of lost hours does not arise.

House allowance

All employees including Samuel K. Korir were entitled to house allowance at the rate of 20% of basic pay.

The company paid Kshs.1,000/= per month to cater for house allowance, however, according to Building and Construction Industry Wages order legal notice No. 20 of 1st February, 2013, the employee who is not housed by the employer is entitled to house allowance at the rate of 20% of basic pay therefore 20% of 19475 is 3894/80 less 1000=2894/80 x 12 = 34,737. 60/=.

Therefore Samuel Korir is owed Kshs.34,737. 60 only as house allowance arrears.

Edwin Chumo

Edwin Chumo was employed as a tipper driver in September 2013 earning Kshs.600/= per day, thereafter in September, 2014 the salary was adjusted to Kshs.19,474. 00 there the issue of underpayment of wages does not arise however, the company paid Mr. Chumo Kshs.1,000/= per month as house allowance instead of 3894/80 which resulted into underpayment of house allowance.  Therefore for 12 months Mr. Chumo is owed by the company Kshs.2,894 x 12 months=34,737/60 only.

David K. Barusei

Mr. David K. Barusei was employed by the company as a tipper

driver earning Kshs.600/= per day which was thereafter adjusted to Kshs.19,600/= per month.  He left employment in November, 2015 and was paid his terminal dues in full and final settlement as follows;-

Wages for days worked      5,131/=

Service gratuity                20,792/=

Accrued leave               16,852/=

Total dues                     42,775/=

He received Kshs.42,800/=.

During the employment period David K. Barusei was paid Kshs.1,000/= per month as house allowance instead of 3,920/80 which resulted in underpayment of house allowance therefore Mr. Barusei is owed by the company Kshs.2,920 x 12 months = 35,040/= only.

The remaining four employees namely:-

1. Victor Githiomi Charles

2. Hassan B. Guleth

3. Joshua Barasa Karani

4. Eliud Mwanzi

are still in employment and therefore the matter can be handled at the company level.

Finally, the issue of underpayment can be said to have been resolved in that in September, 2014 the company adjusted wages for all workers including the claimants as per the Building and Construction Industry Wages Order Legal Notice No. 20 (see attached copy).

I directed counsel for the claimant Ms Situma and Company Advocates to file written submissions in response to the County Labour Officer’s report which were filed on 19th May 2017.

It is submitted that the claimants were underpaid in contravention of the Regulations of Wages (General) Order 2013 as they were paid Kshs. 50/=, 60/= and 65/= during the period they worked instead of Kshs.175/= per hour worked.  It is further submitted that the claimants worked for 12 hours daily from Monday to Sunday from 7 a.m. to 7 p.m. but were paid for 8 hours only thus each of them is entitled to overtime of 4 hours a day, the claimants further submit that they were not given or paid in lieu of annual leave and are entitled to payment for the same.

The claimants however abandoned their prayers for NSSF, NHIF and PAYE.  Their final claims are therefore as follows:-

1st claimant – Samuel Kipngetich Korir

Underpayment                 401,600/=

Lost hours/overtime         315,000/=

Annual leave                    42,000/=

Total                             758,600/=

2nd claimant – Guleth Bule Hassan

Underpayment              709,600/=

Lost hours/overtime       609,000/=

Annual leave                  84,000/=

Total                            1,402,600/=

3rd claimant – Victor Githimomi

Underpayment              709,600/=

Lost hours/overtime      609,000/=

Annual leave                 84,000/=

Total                            1,402,600/=

4th claimant – Edwin Kiprotich Chumo

Underpayment               470,400/=

Lost hours/overtime      378,000/=

Annual leave                   42,000/=

Total                               890,400/=

5th claimant – David K. Burusei

Underpayment                 518,400/=

Lost hours/overtime         399,000/=

Annual leave                    42,000/=

Total                                959,400/=

6th claimant – Eliud Galenywa Mwanzi

Underpayment           633,600/=

Lost hours/overtime    462,000/=

Annual leave               42,000/=

Total                       1,137,600/=

7th claimant – Joshua Barasa Karani

Underpayment          345,000/=

Lost hours/overtime  315,000/=

Annual leave               42,000/=

Total                     702,000/=

Determination

I have considered the claims herein.  The claim is limited to the terminal dues payable to the claimants only.  The issue for determination is therefore whether each of the claimants is entitled to underpayments, lost hours/overtime and annual leave.

I have noted that in the written submissions no attempt was made to address the findings in the report of the Labour Officer.  The claimants did not deny that they were paid as stated in the report of the County Labour Officer for Korir, Chumo and Barusei nor did they deny that the other 4 claimants being Githiomi, Guleth, Karani and Mwanzi were still in employment at the time of filing suit and even at the time of preparation of the County Labour Officer’s report on 6th September 2016.  For these reasons I will consider the report to represent the factual position.

An extract of payroll for the claimants is attached to the report of the County Labour Officer which reflects that all the claimants were Tipper drivers paid at a monthly basic salary of 19,474 as at September 2014.  They were also paid house allowance, normal overtime, holidays and rest days.

From the foregoing, I confirm the findings of the County Labour Officer.  I however note that apart from Korir (1st claimant) and Barusei (5th claimant) no mention is made about payment of annual leave.  Annual leave is a right of all employees.  All employees are therefore entitled to annual leave or pay in lieu thereof, whether still in employment or not.

Conclusion

Based on the foregoing I enter judgment as follows:-

Samuel Kipngetich Korir

There is no proof of the claims in respect of underpayments, lost hours and overtime.

On annual leave, he is entitled to annual leave for 15 months being 26. 25 days.  At a salary of Kshs.26,859 he is entitled to Kshs.22,976. 70.  Having been paid Kshs.19,705, he is entitled to the balance of Kshs.3,502. 70/= which I award him.

Guleth Bule Hassan

The prayer for underpayment has not been proved and is dismissed. The prayer for lost hours/overtime is also not proved and is dismissed.  His claim for annual leave is allowed for the period of 29 months in the sum of Kshs.35,985. 40/= which I award him.

Victor Githiomi

The claims for underpayments, lost hours and overtime are dismissed for want of proof.  The claim for annual leave is allowed.  I award the claimant Kshs.35,985. 40/= for 29 months served.

Edwin Kiprotich Chumo

The prayers for underpayments, lost hours and overtime are dismissed.  The prayer for annual leave is granted for 18 months at Kshs.22,335. 75. This will be in addition to Kshs.34,737. 60 found to be due to him on account of house allowance by the County Labour Officer making a total of Kshs.57,073. 40.  I therefore award him Kshs.57,073. 40/=.

David Barusei

The claim for underpayment, lost hours and overtime are dismissed as not having been proved.  The prayer for annual leave is granted for a period of 19 months at Kshs.23,576. 50 less the sum of Kshs.16,852 paid.  He is therefore entitled to Kshs.6,724. 50/=.

Eliud Gulenywa Mwanza

The claims for underpayments, lost hours and overtime are dismissed.  The prayer for annual leave is granted for 22 months at Kshs.21,865/=.

Joshua Barasa

The claim for underpayments, lost hours and overtime are dismissed for want of proof.  The prayer for annual leave is granted for 13 months at Kshs.16,131. 30/=.

The respondent shall pay claimant’s costs on the lower scale on the basis that it is an undefended claim.

DATED AND SIGNED THIS 14TH DAY OF MARCH 2018

MAUREEN ONYANGO

JUDGE

DATED AND DELIVERED AT ON THIS 10TH DAY OF MAY 2018

MATHEWS NDERI NDUMA

JUDGE