Case ID:171550

Charles Okungu Odhiambo & 28 others v Juja Coffee Exporters Limited [2021] eKLR

Case Metadata

Case Number:

Cause 307 of 2015

Parties:

Charles Okungu Odhiambo, Elias Omondi Obuya, Gilbert Yaura Shikavale, Haji Chite Juma, James Muendo Mwetu, Onesmus Muoka Kitumbi, John Kimwili, Patrick Sakwa Namakhabwa, Joseph Pudo Akeng’o, Daudi Odhiambo Oketch, Andrew Anyangu Angaya, Tom Nyongesa Mbanga, Joseck Okachi Alela, Mourice Otieno Winyo, Joseph Onyong’o Musambai, Thomas Ochieng’ Odhiambo, Nzioka Maithya, Livingstone Makhoha Shiundu, Stephen Kanja Chiira, Livingstone Chiema Anjere, Kenedy Ochieng Awino, Felix Otieno Obade, Fredrick Odhiambo Hadulo, Dick Odhiambo Omolo, James Namenge Okongo, Emmanuel Odhiambo Ombuoro, Erick Otieno Omondi, Edward Okello Obiero & Kitheka Mboto v Juja Coffee Exporters Limited

Date Delivered:

25 Feb 2021

Case Class:

Civil

Court:

Employment and Labour Relations Court at Mombasa

Case Action:

Judgment

Judge(s):

Linnet Ndolo

Citation:

Charles Okungu Odhiambo & 28 others v Juja Coffee Exporters Limited [2021] eKLR

Advocates:

Miss Chala for the Claimants

Mr. Kongere for the Respondent

Court Division:

Employment and Labour Relations

County:

Mombasa

Advocates:

Miss Chala for the Claimants

Mr. Kongere for the Respondent

History Advocates:

Both Parties Represented

Case Outcome:

Claims dismissed.

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT MOMBASA

CAUSE NO 307 OF 2015

CHARLES OKUNGU ODHIAMBO................................1

ST

CLAIMANT

ELIAS OMONDI OBUYA...............................................2

ND

CLAIMANT

GILBERT YAURA SHIKAVALE......................................3

RD

CLAIMANT

HAJI CHITE JUMA.........................................................4

TH

CLAIMANT

JAMES MUENDO MWETU.............................................5

TH

CLAIMANT

ONESMUS MUOKA KITUMBI.......................................6

TH

CLAIMANT

JOHN KIMWILI..............................................................7

TH

CLAIMANT

PATRICK SAKWA NAMAKHABWA..............................8

TH

CLAIMANT

JOSEPH PUDO AKENG’O.............................................9

TH

CLAIMANT

DAUDI ODHIAMBO OKETCH....................................10

TH

CLAIMANT

ANDREW ANYANGU ANGAYA....................................11

TH

CLAIMANT

TOM NYONGESA MBANGA........................................12

TH

CLAIMANT

JOSECK OKACHI ALELA...........................................13

TH

CLAIMANT

MOURICE OTIENO WINYO.......................................14

TH

CLAIMANT

JOSEPH ONYONG’O MUSAMBAI............................15

TH

CLAIMANT

THOMAS OCHIENG’ ODHIAMBO............................16

TH

CLAIMANT

NZIOKA MAITHYA.......................................................17

TH

CLAIMANT

LIVINGSTONE MAKHOHA SHIUNDU.......................18

TH

CLAIMANT

STEPHEN KANJA CHIIRA...........................................19

TH

CLAIMANT

LIVINGSTONE CHIEMA ANJERE................................20

TH

CLAIMANT

KENEDY OCHIENG AWINO........................................21

ST

CLAIMANT

FELIX OTIENO OBADE................................................22

ND

CLAIMANT

FREDRICK ODHIAMBO HADULO............................23

RD

CLAIMANT

DICK ODHIAMBO OMOLO......................................24

TH

CLAIMANT

JAMES NAMENGE OKONGO.....................................25

TH

CLAIMANT

EMMANUEL ODHIAMBO OMBUORO......................26

TH

CLAIMANT

ERICK OTIENO OMONDI...........................................27

TH

CLAIMANT

EDWARD OKELLO OBIERO......................................28

TH

CLAIMANT

KITHEKA MBOTO........................................................29

TH

CLAIMANT

VS

JUJA COFFEE EXPORTERS LIMITED.............................RESPONDENT

JUDGMENT

Introduction

1. This matter was initially heard by

Rika J

who, on 16

th

June 2017, delivered judgment in favour of the Claimants in the total sum of Kshs. 16,433,800 comprising of terminal dues and compensation for unfair termination of employment.

2. According to the record, the Respondent failed to present its witnesses within the time prescribed by the Court and its case was therefore marked as closed on 11

th

October 2016.

3. On 25

th

July 2017, the Respondent filed an application seeking stay of execution of the judgment, setting aside of the judgment and reopening of proceedings.

Rika J

granted an interim stay of execution on the same date of the application subject to the Respondent depositing the total decretal sum of Kshs. 16,433,800 in court within 14 days.

4. The Respondent subsequently filed another application for stay of execution on 17

th

August 2017, during the court recess. A second interim stay of execution was granted by the Duty Judge in Nairobi.

5. In the end, by a ruling delivered on 23

rd

November 2017,

Rika J

dismissed the Respondent’s two applications with costs to the Claimants.

6. The Respondent appealed against the ruling by

Rika J

and the Court of Appeal set aside the judgment of 16

th

June 2017 and directed that the case be reopened.

7. On 21

st

June 2019,

Rika J

determined that because he had delivered the initial judgment, objectivity in the retrial would be comprised. He therefore directed that the matter be reheard by another Judge. Being the only other Judge at Mombasa ELRC, the matter found its way on my cause list.

The Claimants’ Case

8. By a Memorandum of Claim dated 5

th

May 2015 and filed in court on 8

th

May 2015, the Claimants state that they were all employees of the Respondent, working as blenders in the Tea Blending Section.

9. They claim to have served for diverse periods as outlined hereunder:

a) 1

st

Claimant- July 1994 to 18

th

September 2014;

b) 2

nd

Claimant – 1995 to 18

th

September 2014;

c) 3

rd

& 4

th

Claimants – 2000 to 18

th

September 2014;

d) 5

th

Claimant – 2001 to 18

th

September 2014;

e) 6

th

& 7

th

Claimants – 2002 to 18

th

September 2014;

f) 8

th

& 9

th

Claimants – 2003 to 18

th

September 2014;

g) 10

th

– 20

th

Claimants – 2005 to 18

th

September 2014;

h) 21

st

& 22

nd

Claimants – 2006 to 18

th

September 2014;

i) 23

rd

& 24

th

Claimants – 2008 to 18

th

September 2014;

j) 25

th

– 28

th

Claimants – 2010 to 18

th

September 2014;

k) 29

th

Claimant – 2012 to 18

th

September 2014.

10. The Claimants contend that their employment was terminated on 18

th

September 2014, without prior notice. They further contend that they were not allowed to go on leave nor were they paid in lieu thereof.

11. The Claimants state that they were earning a daily wage of Kshs. 800, amounting to Kshs. 20,800 per month. They claim that they were not paid house allowance as stipulated by law.

12. The Claimants’ case is that the termination of their employment was without justifiable cause and in violation of due process.

13. The Claimants have tabulated their respective claims as follows:

1

st

Claimant: Charles Okungu Odhiambo

a) One month’s pay in lieu of notice…..Kshs. 20,800

b) Leave pay for 21 years…………………...352,800

c) Service pay………………………………..52,000

d) 12 months’ pay in compensation…………249,600

2

nd

Claimant: Elias Omondi Obuya

a) One month’s pay in lieu of notice…...Kshs. 20,800

b) Leave pay for 20 years…………………....336,000

c) Service pay……………………………….240,000

d) 12 months’ pay in compensation………….249,600

3

rd

Claimant: Gilbert Yaura Shivakale

a) One month’s pay in lieu of notice…….Kshs. 20,800

b) Leave pay for 15 years……………………..252,000

c) Service pay………………………………...180,000

d) 12 months’ pay in compensation…………..249,600

4

th

Claimant: Haji Chite Juma

a) One month’s pay in lieu of notice….....Kshs. 20,800

b) Leave pay for 15 years…………………..…252,000

c) Service pay……………………………..….180,000

d) 12 months’ pay in compensation…………..249,600

5

th

Claimant: Gilbert Yaura Shivakale

a) One month’s pay in lieu of notice…….Kshs. 20,800

b) Leave pay for 14 years……………………..235,200

c) Service pay………………………………...168,000

d) 12 months’ pay in compensation…………..249,600

6

th

Claimant: Onesmus Muoka Kitumbi

a) One month’s pay in lieu of notice…….Kshs. 20,800

b) Leave pay for 13 years……………………..214,400

c) Service pay………………………………...156,000

d) 12 months’ pay in compensation…………..249,600

7

th

Claimant: John Kimwili

a) One month’s pay in lieu of notice…….Kshs. 20,800

b) Leave pay for 13 years……………………..214,400

c) Service pay…………………………………156,000

d) 12 months’ pay in compensation…………...249,600

8

th

Claimant: Patrick Sakwa Namakhabwa

a) One month’s pay in lieu of notice……...Kshs. 20,800

b) Leave pay for 12 years………………………201,600

c) Service pay………………………………….144,000

d) 12 months’ pay in compensation………….....249,600

9

th

Claimant: Joseph Pudo Akeng’o

a) One month’s pay in lieu of notice………Kshs. 20,800

b) Leave pay for 12 years……………………….201,600

c) Service pay…………………………………..144,000

d) 12 months’ pay in compensation……………..249,600

10

th

Claimant: Daudi Odhiambo Oketch

a) One month’s pay in lieu of notice……….Kshs. 20,800

b) Leave pay for 10 years………………………..168,000

c) Service pay……………………………………120,000

d) 12 months’ pay in compensation……………...249,600

11

th

Claimant: Andrew Anyangu Angaya

a) One month’s pay in lieu of notice………..Kshs. 20,800

b) Leave pay for 10 years………………………...168,000

c) Service pay……………………………………120,000

d) 12 months’ pay in compensation……………...249,600

12

th

Claimant: Tom Nyongesa Mbanga

a) One month’s pay in lieu of notice………..Kshs. 20,800

b) Leave pay for 10 years………………………...168,000

c) Service pay……………………………………120,000

d) 12 months’ pay in compensation……………...249,600

13

th

Claimant: Joseck Okachi Alela

a) One month’s pay in lieu of notice………..Kshs. 20,800

b) Leave pay for 10 years………………………...168,000

c) Service pay……………………………………120,000

d) 12 months’ pay in compensation………………249,600

14

th

Claimant: Mourice Otieno Winyo

a) One month’s pay in lieu of notice…………Kshs. 20,800

b) Leave pay for 10 years………………………….168,000

c) Service pay……………………………………..120,000

d) 12 months’ pay in compensation………………..249,600

15

th

Claimant: Joseph Onyong’o Musambai

a) One month’s pay in lieu of notice………….Kshs. 20,800

b) Leave pay for 10 years…………………………..168,000

c) Service pay……………………………………...120,000

d) 12 months’ pay in compensation………………..249,600

16

th

Claimant: Thomas Ochieng Odhiambo

a) One month’s pay in lieu of notice………….Kshs. 20,800

b) Leave pay for 10 years…………………………..168,000

c) Service pay………………………………………120,000

d) 12 months’ pay in compensation………………....249,600

17

th

Claimant: Nzioka Maithya

a) One month’s pay in lieu of notice…………..Kshs. 20,800

b) Leave pay for 10 years…………………………...168,000

c) Service pay………………………………………120,000

d) 12 months’ pay in compensation………………...249,600

18

th

Claimant: Livingstone Makhoha Shiundu

a) One month’s pay in lieu of notice…………..Kshs. 20,800

b) Leave pay for 10 years…………………………...168,000

c) Service pay……………………………………....120,000

d) 12 months’ pay in compensation………………...249,600

19

th

Claimant: Stephen Kanja Chiira

a) One month’s pay in lieu of notice…………..Kshs. 20,800

b) Leave pay for 10 years…………………………...168,000

c) Service pay………………………………………120,000

d) 12 months’ pay in compensation………………....249,600

20

th

Claimant: Livingstone Chiema Anjere

a) One month’s pay in lieu of notice…………...Kshs. 20,800

b) Leave pay for 10 years…………………………....168,000

c) Service pay………………………………………..120,000

d) 12 months’ pay in compensation………………….249,600

21

st

Claimant: Kennedy Ochieng Awino

a) One month’s pay in lieu of notice………....…Kshs. 20,800

b) Leave pay for 9 years………………………..…….151,200

c) Service pay…………………………………..……108,000

d) 12 months’ pay in compensation………………….249,600

22

nd

Claimant: Felix Otieno Obade

a) One month’s pay in lieu of notice……………Kshs. 20,800

b) Leave pay for 9 years………………………………151,200

c) Service pay………………………………………...108,000

d) 12 months’ pay in compensation…………………..249,600

23

rd

Claimant: Fredrick Odhiambo Hadulo

a) One month’s pay in lieu of notice………….....Kshs. 20,800

b) Leave pay for 7 years……………………………….117,600

c) Service pay…………………………………………..84,000

d) 12 months’ pay in compensation…………………....249,600

24

th

Claimant: Dick Odhiambo Omolo

a) One month’s pay in lieu of notice……………..Kshs. 20,800

b) Leave pay for 7 years………………………………..117,600

c) Service pay…………………………………………...84,000

d) 12 months’ pay in compensation…………………….249,600

25

th

Claimant: James Namenge Okongo

a) One month’s pay in lieu of notice………………..Kshs. 20,800

b) Leave pay for 5 years…………………………………...84,000

c) Service pay……………………………………………..48,000

d) 12 months’ pay in compensation……………………....249,600

26

th

Claimant: Emmanuel Odhiambo Ombuoro

a) One month’s pay in lieu of notice………………...Kshs. 20,800

b) Leave pay for 5 years…………………………………....84,000

c) Service pay……………………………………………...48,000

d) 12 months’ pay in compensation……………………….249,600

27

th

Claimant: Erick Otieno Omondi

a) One month’s pay in lieu of notice………………....Kshs. 20,800

b) Leave pay for 5 years………………………………….…84,000

c) Service pay………………………………………………48,000

d) 12 months’ pay in compensation…………………….....249,600

28

th

Claimant: Edward Okello Obiero

a) One month’s pay in lieu of notice……………........Kshs. 20,800

b) Leave pay for 5 years…………………………………….84,000

c) Service pay………………………………………………48,000

d) 12 months’ pay in compensation……………………….249,600

29

th

Claimant: Emmanuel Odhiambo Ombuoro

a) One month’s pay in lieu of notice………………….Kshs. 20,800

b) Leave pay for 3 years………………………………..........50,400

c) Service pay……………………………………………….36,000

d) 12 months’ pay in compensation………………………...249,600

14. The Claimants also ask for certificates of service, costs and interest.

The Respondent’s Case

15. The Respondent filed a Reply dated 22

nd

June 2015 in which it denies terminating the Claimants’ employment on 18

th

September 2014 or at all.

16. The Respondent states that the nature of its business does not allow it to have employees for a continuous period making them qualify for leave.

17. The Respondent denies having employed any of the Claimants whether as casuals or permanent employees. The Respondent further denies having dealt with the Claimants, save for the 1

st

Claimant, Charles Okungu Odhiambo.

18. The Respondent states that it never paid any of the Claimants any money as daily wages. The Respondent adds that it always paid an agreed sum per bag of blended tea, at a fee agreed upon between the Respondent and the 1

st

Claimant.

19. Regarding the claim for house allowance, the Respondent states that it could not pay house allowance to persons who it never retained whether as casuals, term or seasonal employees or employees of any sort whatsoever.

20. The Respondent avers that it never terminated the employment of the Claimants. The Respondent further avers that the Claimants, if at all they were at the Respondent’s business premises, simply completed the tasks for which they had been hired and went home.

21. The Respondent submits that a substantial portion of the Claimants’ claims is time barred by Section 90 of the Employment Act.

Findings and Determination

22. From the parties’ pleadings, testimony and pleadings, the first issue that falls for determination is whether there was an employment relationship between the Claimants and the Respondent, capable of enforcement by this Court.

23. The Claimants plead that they were employed by the Respondent on diverse dates ranging from 1994 to 2012. On its part, the Respondent denies ever having employed the Claimants and states that it had an arrangement with the 1

st

Claimant, Charles Okungu Odhiambo, by which Okungu supplied labour on need basis.

24. Section 2 of the Employment Act,2007 defines an employee as:

“a person employed for wages or a salary and includes an apprentice and indentured learner”

25. The same section defines an employer as:

“any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual”

26. A contract of service is defined as:

“an agreement, whether oral or in writing, and whether expressed or implied, to employ or serve as an employee for a period of time, and includes a contract of apprenticeship and indentured learnership”

27. The existence of an employment relationship is a matter of evidence and where it is in contention, the burden of proof is on the party alleging its existence (see

Joseph Otieno Ogutu & 24 others v Allied Wharfage Ltd & another

[2016] eKLR

).

28. The Claimants claim to have been employed orally. The 1

st

Claimant, Charles Okungu Odhiambo and the 16

th

Claimant, Thomas Ochieng Odhiambo testified on their own behalf and on behalf of their co-claimants. I have had occasion to read their testimony as recorded by

Rika J

.

29. In cross examination, Ochieng testified that he started working for the Respondent in 2005 when the blending machine was mounted. He states that he was recruited by Okungu, who kept an attendance register.

30. Ochieng was equivocal as to who paid him. On the one hand he claimed to have been paid by the Respondent’s cashier and on the other he stated that he received money from Okungu. Okungu himself confirmed that he received money from the cashier, which he paid to the other Claimants. Okungu further confirmed having recruited the other Claimants from other tea companies.

31. Okungu testified that he joined the Respondent in 1994 at which time he was handling cereals. This piece of testimony is at variance with the pleading in the Memorandum of Claim that the Claimants were employed as blenders in the Tea Blending Section.

32. The Respondent’s witnesses Francis Okoth Otieno, who worked as a Warehouse Clerk and Idris Ali, who was employed as a Supervisor testified that during their employment, the Respondent periodically sourced labour from Okungu, whom they described as a

‘gang leader’.

33. My analysis of the evidence on record reveals that although there may have been a work relationship between some of the Claimants and the Respondent, there was no employment relationship as defined in law.

34. It would follow naturally that because the Claimants’ claims are premised on the existence of an employment relationship, the claims must fail.

35. Each party will bear their own costs.

36. Orders accordingly.

DATED SIGNED AND DELIVERED AT MALINDI THIS 25

TH

DAY OF FEBRUARY 2021

LINNET NDOLO

JUDGE

ORDER

In view of restrictions in physical court operations occasioned by the COVID-19 Pandemic, this judgment has been delivered via Microsoft Teams Online Platform. A signed copy will be availed to each party upon payment of court fees.

LINNET NDOLO

JUDGE

Appearance

:

Miss Chala for the Claimants

Mr. Kongere for the Respondent