REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF KENYA AT
MOMBASA
CAUSE NO.40 of 2015
1. JOHN WANGOMBE KINYEKI
2. SAMUEL CHONDO MZALA
3. BONIFACE NAFULA KHAYAKA
4. REVY MATI MALIKANZI
5. KIMONYO KILIKU
6. THOMAS OTIENO MWANGO
7. FIDELIS MATI
8. ELLY ALOO OLOO
9. PIUS NDWIGA
10. ABDALLA MWAJASI
11. DOMINICK OCHINO ONG’OMBE
12. ZACHARIA TOWETT
13. MESHACK MWANZOKA
14. MOHAMED OMAR
15. DANIEL KIOKO KITONYI
16. FREDRICK MAWEU MUTAVI
17. PATRICK K. MWIKYA
18. PETER MUNYONYO ONYANGO
19. TWALIB MWAMZANDI
20. RAPHAEL KURIA
21. KENNEDY OPICHE
22. PHILISTER JELAGAT (suing as the Administrator of the Estate of ROBERT LELEY)
23. MOHAMED Y. ABDULLE
24. SIMEON KIPLANGAT TOWETT
25. GEORGE MAHERO
26. STANLEY KABURIA MARETE
27. WASHINGTON OTWOMA
28. MOSE KIPRONO KURGAT
29. DANIEL KATEE
30. MARTIN MWANYIKA
31. ALI KASSIM SETI
32. DENNIS ANGWENYI
33. WILLIAM OTIT
34. PETER ADEMBESA WETUKA
35. OSURO ATUKE
36. FRANCIS MOLE OLE KANOKO
37. BUGU NASSORO
38. JARED NYAMATO
39. KENNETH WANDERA
40. STEPHEN GATOGO
41. KHALIFA MANENO
42. OWALA ISAYA GURA
43. NASSORO MASHOBO
44. AUSTIM WANYAMA
45. MARTIN YATOR
46. SHOSI MOHAMED SHEKUE
47. LUKA KANDA BOWEN
48. AMOS ODERO
49. MWADZAME TINGA MWARUWA
50. JAMES M. MUNYALO
51. SAMSON NYALILEY
52. WILLIAM LEBO
53 PAUL CHIRCHIR
54 RONNIE MWADIME
55. SHEKUE KAHALE
56 ISAAC APPOLO OGOLA
57. MKUTANO KALAMA
58. ALI HAMISI MWAMANENO
59. BISMARCK MUSYOKA MITAU
60. RAMADHAN MDAKA
61. PAUL OGAI
62. MUINDI TIKIKO MUSOMBA
63. BERNARD C. BULINDA
64 FRANCIS M. KIEMA
65. JOHN MWIZI
66. YUSUF AHMED
67. PETER GITAU
68. GENGE OMONDI
69. NELSON RIMBA
70. MAURICE OBONDO
71. JOSEPH MULIMU ASHIBAKA
72. JOEL KING’OLA MUVITI
73. AMOS MUSAVI
74. JOHN MARITIM
75. ARDENER OGUTU
76. DOMINIC WAMBUA KASOO
77. PETER OKOLLAH MAK’SEWE
78. CHARLES KIPKOECH KOTUT
79. GIDEON BARAKA
80. SAID MWAROPIA
81. MWINYI BWAJUMA FAKI
82. KHAMISI JUMA OMAR
83. ERIC AMUMA
84. KORI KALIST
85. WILLIAM M. KABIU
86. STANLEY MAIYO
87. ONESMUS OLILO
88. MBWANA BANDA
89. MOSES KIMUTAI KIRUI………………………….…………….…………..CLAIMANTS
VERSUS
1. KENYA PORTS AUTHORITY
2. THE MANAGING DIRECTOR, KENYA PORTS AUTHORITY……RESPONDENTS
JUDGMENT
The claimants pray for judgment against the Respondents jointly and/or severally for: -
- A declaration that the actions of the Respondents of warning and interdicting the Petitioners and the purported hearing process were illegal, unlawful, unconstitutional, unwarranted and wrongful.
- A declaration that the actions of the Respondent Defendants of advertising the jobs of the Petitioners Plaintiffs in the Daily Nation Newspaper before interdicting and hearing the Claimants was illegal and unconstitutional.
- A declaration that letters lifting the Petitioner’s/Plaintiff’s interdictions and surcharging them dated between may, 2011 and 29 and 30th January 2012 or thereabouts and the act of engaging untrained/unskilled, unqualified, by authorizing personnel to operate gantry cranes as from 1st April 2011 were null and void, unconstitutional and illegal and/or gross misconduct on the part of the Respondents in so far as they contravened and infringed and/or continues to contravene and infringe on the Claimants’ fundamental rights and freedoms guaranteed and protected under Articles 25, 27, 29, 36, 37, 41, 47 and 50 of the Constitution of Kenya, 2010 as well as sections 4 and 5 of The Labour Relations Act, 2007, and the Employment Act, Occupational Safety and Health Act No. 15 of 2007 Employment and Labour Relations Court Act, 2011, inter alia
- A declaration that the Respondents actions of placing the Respondents on probation for periods ranging between Two (2) and Three (3) Months, notwithstanding that they had been in employment with the First Defendant for periods ranging between Eight (8) and Thirty (30) Months, was illegal, unconstitutional, unlawful and/or wrongful and/or gross misconduct on the part of the Respondents and an order that the Warning Letters, letters of Interdiction and Letters placing the Claimants on Probation and/or all such records be expunged and permanently removed from human resource records and personal files of each respective Claimants accompanied with written apology by the Respondents.
- An order that the Respondents do pay to the Claimants the special damages as pleaded and particularized in Paragraph 42 above.
(f) A declaration that the totality of the Respondents actions herein were in gross
Professional misconduct, unconstitutional, illegal, unlawful, wrongful and/or that the Claimants have been discriminated against in breach of their fundamental rights and freedoms, were meant to frustrate the Claimants’ right to have their salaries and allowances harmonized and paid similar to other employees of the First Respondent holding positions similar to those held by the Claimants, that the Respondents have maintained unconstitutional and/or unfair labour practices and subjected the Claimants to unfair remuneration.
- Reinstatement/restoration of the allowances for the transferred/redeployed staff.
- Refund of interest, interest accrued and penalties paid on loans to the Banks and SACCOs, amount lost on dividends and interest on dividends and/or investments.
- General damages, Exemplary and Punitive Damages.
- The costs of and incidental to this suit.
During the hearing, the parties took into account decisions in Nakuru ELRC Petition No. 68 of 2012 (formerly Mombasa ELRC No. 11 of 2015) and ELRC Petition No.56 of 2014; Civil Appeal No.134 of 2018; and Supreme Court Petition No. E008 of 2023 – Kenya Ports Authority v Joseph Makau Munyao & others. These cases are materially similar to the claims herein and hence, on 31st May 2024 parties filed consent and agreed as follows;
- The 1st respondent to refund to each claimant the amounts surcharged by the 1st respondent plus interest thereon at 12percentage computed from the date of the surcharge to 31st May 2024.
- The breakdown of the surcharged amounts and interest computed thereon is agreed to be the sum of Ksh.60, 644,717.50 … through bank transfer within 45 days of filing this consent.
- The payment of the said amount by the 1st respondent shall be in full and final settlement of any and all claims arising in this suit relating to and/or arising from its surcharge of the claimants and all orders sought in that regard.
- Each party is to bear its own costs.
Claim
The Claimants are all adults and have been employees of the 1st Respondent. The First Respondent is a statutory body with the mandate to maintain and regulate all scheduled seaports. The 2nd Respondent is the Managing Director of the 1st Respondent.
The Claimants were at all material times employed as Gantry Operators of the 1st respondent. They all have worked for various periods ranging between 8 to 30 years.
On or about the 29 and 31 of March 2011, some of the Claimants received warning letters from the Respondents during their respective First, Second and third shifts as they reported on duty. Respondents alleged that the Claimants had neglected or refused to follow laid down performance targets set by Management leading to dismal performance. The Claimants were all given warning letters on the same day and within hours issued with interdiction letters.
The 1st claimant was issued a warning Letter on the 30th March, 2011 at 1500 hours on alleged that he had neglected and refused to follow laid down performance targets set by Management leading to dismal performance on the 29th March 2011. He was also issued a letter of Interdiction from duty which both documents were served upon the Equipment Superintendent, Gantry, in-charge, second shift. On the 29th March 2011, the claimant was allocated RTG 16, located in Export Block C receiving export Containers thus with minimal work), second shift to man the machine for 8 hours as requested by the Equipment Superintendent, Gantry, in-charge, second shift since he had not been allocated a reliever, and the said RTG 16 had a breakdown. On the 30th March 2011, the First Claimant was put on standby by the Equipment Superintendent, Gantry, in-charge, second shift to compensate for the previous day’s man hours worked on the 29th March, 2011.
On the 15th of April 2011 the 1st claimant was issued with an additional charge while he was still on interdiction which charge stated that he had grabbed the Authority’s official documents, warning letter and interdiction letter from a Reginald Waiyaki leading to the disappearance of the said letters and that the alleged action attracts a severe punishment of dismissal from the Authority’s services. These allegations were not correct but the warning and interdiction letters were issued in the second shift by the second shift in charge a Mr. Katunga upon acknowledgement of the same and none were issued by the claimant.
The 40th Claimant, Mr Stephen Gatogo, was on 29 and 30 March 2011 operating equipment No. RTG 027 was on standby in the first shift and was also assisting Muona Mbele, the shift in charge Equipment Superintendent, Mr Muthusi (as per the genuine duty roaster), which was being manned by Katee, Ogutu and Abdille. This notwithstanding, the Claimant was warned and interdicted on the 30th of March 2011 even though he was not operating any machine. In February 2012 he was recalled back to work but under punitive, illegal, unlawful and oppressive conditions including being surcharged, warned against illegal strikes and illegal groups and placed on probation for 24 Months.
The 64th Claimant, Francis M. Kiema was issued with a warning letter dated 31st March 2011 alleging that while operating machine/equipment No. RMG 3/4 at the yard yet RMG 4 was not functional for a period of more than one month due to a breakdown leaving Three (3) Operators to operate RMG 3. The said machine was assigned to Three (3) Operators, Mwanyule, Mwinzi and Kiema and all were interdicted, where Mwinzi was reinstated within 2 months with a surcharge of 2 Months; while the 64th Claimant after the disciplinary hearing was reinstated after 10 Months and surcharged two and half Months’ Basic salary while Mwanyule was deployed to Administration and lost all allowances.
The 89th Claimant, Moses Kirui was a dormant shift/off duty until 4th April 2011 when he found winch men, retirees, technical personnel from technical services and various other Departments operating the gantries. He discovered that his colleagues had been interdicted, and during the said period, many accidents occurred at the Container Terminal.
The 89th Claimant was placed on the First Shift between 4th to 10th April 2011, then the second shift from 11th to 17th, 2011 and then the third shift from 18th up to 24th April 2011 whereafter he proceeded to dormant shift/off duty from 25th up to the 1st May 2011. He reported back to duty on the 2nd May 2011 and was placed on the First shift and continued to work till the 4th of May 2011 when he was served with a Letter of Interdiction dated 29th April 2011.
The 89th Claimant states that on having received an interdiction letter he read the same and realized that the said interdiction was alleging that he was a member of an illegal group calling itself “Supreme Committee” This was quite shocking and confusing because he had not heard of such group save for the Gantry Operators Self Help Group which is registered under the Ministry of Gender Children and Social Development a fact that is well known by the Respondents. He was not on duty from the 29th to 31st March 2011 as he was on dormant shift/off duty and the interdiction letter was illegal, unlawful, and unconstitutional in clear breach of the applicable law.
The Claimants challenged the manner in which they were issued with warning letters, interdiction notices, and the hiring of retried or unskilled Gantry Operators which resulted in many accidents at the Port. There was congestion at the Container Terminal which was caused by a number of factors including a strike by the Kenya Railways Workers and, the KRA Simba System which was slowed causing inefficiencies. There were repairs of the Quayside at berth 18, which impacted the movements and berth availability.
The Claimants were shocked to read in the Daily Nation Edition of 31st March 2011 wherein the Respondents had advertised their jobs and were looking for replacements before some of them had been served with the Warning Letters and/or of Letters interdiction. These were clear indicators that the Respondents already made illegal, unconstitutional, unlawful and/or wrongful decisions of engaging themselves in corrupt or negative activities or practices, such as nepotism, tribalism and other acts of discrimination in discharging their functions to dismiss the Claimants from their employment and to deploy their relatives, cronies and/or kinsmen in replacement thereof, a fact which was subsequently executed by the Second Respondent in collusion with other officers under the employment of the Respondents and under the command of the Second Respondent.
The Claim is that due to the Respondents’ breach of Constitutional duties, responsibilities and/or obligations and/or violation of the Claimants’ fundamental rights and freedoms, they have suffered and continue to suffer loss and damage. The Claimants had taken loans from their respective Banks and/or SACCOs and further they utilized their income to invest in their SACCOS but due to the illegal unconstitutional, unlawful and/or wrongful actions by the Respondents aforesaid, they incurred extra costs in servicing their respective loan accounts with their Bankers and/or SACCOs and/or have also lost on SACCOs contributions and/or dividends derived therefrom. Some were blacklisted by their respective Banks.
A schedule for each claimant was done giving specific details for individual claims. The example of the 1st, 2nd 84th and 86th claimants;
JOHN WANGOMBE KINYEKI.
(a) Deducted Surcharge equivalent to 3 Months’ Salary--------------Kshs. 245,580.00
(b)Fixed allowances for extra hours’ loss at Kshs 45,000.00 per Month from 1st
April 2011 till payment in full.
(c) Fixed allowances loss as shift allowance at Kshs 1,875.00 per Month
From 1st April, 2011 to January 2013---------------------------------Kshs. 41,250.00
(c) Fixed allowance from February 2013 to Aug 2014
11.5percentage of basic 99,370=11,427.55 x19------------------------------Kshs. 217,123.45
(d) Fixed allowance as of September 2014 of 11.5percentage of the basic salary of Kshs. 109,300 till payment in full.
(e) Fixed allowances loss as Commuted Car Allowance at
Kshs. 14,285.75 per Month from 1st April 2011 up to
31st August, 2011----------------------------------------------------Kshs. 71,428.75
(f) Motor transport allowance from 1st September 2011
To 31st January 2012------------------------------------------------Kshs. 90,000.00
(g)Salary Increment of Kshs. 21,000.00 per Month from 1st April, 2011
till payment in full.
(h) Salary Bonus loss of Kshs 7,000.00 from 31st March 2011 till payment in full.
(i) Uniform detergent loss of Kshs 500.00 from
31st March, 2011 to 31st January, 2012------------------------------Kshs. 5,000.00
SAMUEL CHONDO MZALA
(a) Deducted Surcharge equivalent to 2 Months’ Salary---------------Kshs. 163,720.00
(b) Fixed allowances loss extra hours lost
As from 31st March to June 2011------------------------------------Kshs. 72,000.00
(c) Fixed allowances loss as shift allowance at Kshs 1,875.00 per Month
Lost in May 2011--------------------------------------------------------Kshs. 1,875.00
(d) Fixed allowances loss as Commuted Car Allowance at
Kshs 14,285.75 per Month lost in April, 2011 ---------------------Kshs. 14,285.75
(e) Salary Bonus loss of Kshs 7, 000.00 from May 2011---------------Kshs. 7,000.00
(f) Salary Increment of Kshs 21, 000.00 per Month from 1st April 2011
till payment in full.
KORI KALIST
(a)NO SURCHARGE
(b)Fixed allowances loss as shift allowance at
Kshs 1,875.00 per May, 2011---------------------Kshs 1,875.00
(c)Fixed allowances loss as Commuted Car Allowance at Kshs 14,285.75
per Month from 1st April, 2011 up to 31st August, 2011-----Kshs 71,428.75
(d) Salary Increment of Kshs 21, 000.00 per Month from 1st April 2011 till payment in full.
STANLEY MAIYO
(a)NO SURCHARGE
(b)Fixed allowances for shift allowance at
Kshs 1,875.00 per May 2011---------------------Kshs 1,875.00
(c) Fixed allowances loss as Commuted Car Allowance at Kshs 14,285.75
per Month in April 2011---------------------------------------Kshs 52,500.00
(d)Salary Bonus loss of Kshs 7, 000.00 from 31st March, 2011
up to mid-May 2011. -----------------------------------------Kshs 7,000.00
(e) Salary Increment of Kshs 21, 000.00 per Month from 1st April 2011 till payment in full.
In evidence, the claimants called John Wangombe Kinyeki and I am the First Claimant who testified that the claimants are Gantry Operators employees of the Respondents having worked for various periods ranging between 8 to 30 years. However, between 29th and 31st March 2011, some of the Claimants received warning letters from the Respondents during their respective First, Second and Third shifts as they reported on duty. The Respondents alleged that the Claimants had neglected and/or refused to follow laid down performance targets set by Management leading to dismal performance. The Claimants were given warning letters on the same day and within hours they were issued with interdiction letters.
Kinyeki testified that he received his warning letter on the 30th March 2011 at 1500 hours wherein the Respondents alleged that he had neglected and refused to follow laid down performance targets set by Management leading to dismal performance on the 29th March 2011. On the same date, at 2000 hours, he was issued with a Letter of Interdiction from duty. Both documents were served upon the Equipment Superintendent, Gantry, in-charge, second shift.
Kinyeki testified that on the 29th March, 2011, he was allocated RTG 16, which he was to man for 8 hours in the second shift. He was not allocated a reliever and the RTG 16 had a breakdown. On the 30th March 2011 he was put on standby by the Equipment Superintendent, Gantry, in-charge, second shift to compensate for the previous day’s man hours worked on the 29th March, 2011.
On 15th April, 2011 he was issued with an additional charge while on interdiction which charge stated that he had grabbed the Authority’s official documents, warning letter and interdiction letter from Reginald Waiyaki leading to the disappearance of the said letters. He testified that he did not grab the documents as alleged and was not authorized to handle such documents. The warning and interdiction letters were issued in the second shift by the second shift in charge, Mr. Katunga upon acknowledgement of the same and none were issued by him. That Reginald Waiyaki had a personal grudge against him after being asked by the Managing Director to step out of a meeting on 17th October 2010 which the Second Respondent was chairing.
Kinyeki also testified that gantry operators do not work alone. They work with clerks, Dockers, supervisors, shift managers, nay clerks, crew as a unit and all of whom were employees of the 1st respondent. Due to the actions of the respondent by interdiction and warning letters, the claimants suffered financially and socially and were forced to take Sacco loans to survive. He was forced to transfer his children from one school to another which was cheaper. The 1st respondent barred him from Mbaraki Sports Club to which he had previously had unlimited access.
Kinyeki testified that he was not involved in any go-slow or sabotage to push for their grievances as alleged by the respondents. The allegations that he was allocated RTG 26 were not correct since he was operating RTG 16 which had a breakdown and a matter he had reported.
The hiring of short-term gantry operators by the 1st respondent was not a short-term measure but was a well-calculated ploy to replace the claimants from their positions to which they had taken specialized training. It was not the payment of Ksh.21, 000 that caused the alleged go-slow. Under the Disciplinary Handbook, the 1st respondent was required to give the claimants a warning in the circumstances. In this case, there was no crisis.
Gantry operators cannot work alone and their work involves many other players. They have to work with signalers who guide the operator where to place the containers. Each gantry operator has to work with one signaler. There is a clerk who brings the documents meant to facilitate the movement of the container. The shift in charge of who allocates machines. From all these persons, only the claimants, and gantry operators were affected. Before the warning letters were issued, the claimants were not issued with a notice that their work was below per. It was not normal occurrence to be issued with a warning letter followed by an interdiction and then suspension. The procedures required that verbal warning be issued first, followed by 3 warning letters, then a written charge sheet before interdiction.
Kinyeki testified that there was no go slow as alleged but there was a problem of congestion at the port which did not involve gantry operators. This was caused by a slowdown in cargo movements at the container terminal due to ongoing repairs at Berth 18, slowing operations. The Kenya Railways workers were on strike which affected operators while RMG 4, which had broken down for two months could not operate. The KRA Simba system had broken down, all which affected the whole port operations.
104 gantry operators were interdicted but 10 were directed to resume their duties, another 8 were given benefit of doubt and resumed work. Another 43 were reinstated and 48 remained on interdiction. In February 2012, all the gantry operators were recalled back to work and the interdiction lifted and all remained at work. There was no termination of employment.
The claimants also called Ahmed Yusuf Juma, the 66th claimant. He testified that he worked for the 1st respondent for 28 years and opted for early retirement in December, 2015 at the age of 54. On 29 to 31st march 2011 he was placed in the first shift but was put on standby because he was unwell. He was issued with a warning letter from his supervisor, Aron Muthusi at 1000hours over allegations that he neglected and refused to follow the laid won performance targets set by the respondents leading to dismissal performance on 29 March 2011. At 1200 hours, he was issued with a letter of interdiction served by the gantry in charge for second shift.
Juma testified that he was invited to the disciplinary hearing chaired by Yobesh Oyaro in July 2011. He testified that he was on standby on the day he was issued with warning and interdiction letters. He was sick and had sought treatment at the 1st respondent’s clinic and had documentary evidence to this effect. After the disciplinary hearing, his interdiction was lifted and was returned to work and redeployed from gantry operations to a driver. He felt distressed, victimized and humiliated by the deployment and a demotion to a driver which was a Union cadre grade as against his management grade. The Union members used to mock him due to the demotion and his income reduced drastically. By December 2015 he was unable to report to work leading to an offer for early retirement in March 2016.
Juma testified that one cannot operate as a gantry alone. One is guided by a signaler, a clerk and supervisors for berth and yard. At the time of alleged go-slow, he had submitted a sick sheet from the clinic.
The claimants also called Moses Kimutai Kirui, the 89th claimant and working with the 1st respondent on permanent and pensionable terms. He testified that he resumed from dormant/off duty shift on 4th April 2011 but found winch men, retirees, technical personnel and various other departments operating the gantry cranes. He discovered that his colleagues had been interdicted from duty. That there had been a crisis leading to the claimants’ being interdicted. In such a situation, the gantry operators on dormant shift would have been called back to work. During this period, there were many accidents at the container terminal dues to the respondents engaging untrained operators which was in breach of the Occupational Safety and Health Act.
Kirui testified that he was placed on the first shift from 4 to 10 April 2022, the second shift from 11 to 17 2011, and third shift from 18 to 24 April 2011. He proceeded on dormant shift from 25 to 1st May 2011. On 2 May 2011 he was issued with an interdiction letter dated 29 April 2011 from the Human Resources and Administration manager. There was no warning letter issued before the interdiction. The respondents alleged that from 29 to 31st march 2011, he was a member of an illegal group called “Supreme Committee.” The claimant was not aware of such group and was a member of the Gantry Operators Self Help Group which was registered under the Ministry of Gender Children and Social Development. In any case, he was not on duty during this period, he was on the dormant shift and was not called back to work. The interdiction had no basis and was illegal.
Kirui testified that in his last shift, he worked with Rotich and Atuke as allocated by the shift in charge. From the third shift, he was the only one interdicted together with Mohamed. He was invited to a disciplinary hearing on 7 July 2011 and informed the committee that he was in the dormant shift and was never called back to work which should have been done had there been a problem. He was reinstated back to work and transferred to Nairobi as a foreman and hence lost all the benefits of a gantry operator. He had a loan with Bandari Sacco which he could not service. The transfer to Nairobi affected him as he had taken his family away and had to maintain two houses from the reduced income. When he was paid the withheld salary, the Sacco took it all to settle the arrears for the loan.
Kirui testified that his claim arises from the fact that he was treated unfairly through interdiction. He lost the payment for extra hours of Ksh.45, 000 per month which he had earned save for the interdiction. He also lost the same due to the transfer to Nairobi yet he was innocent of all the allegations made against him. He lost the allowances he would have earned as a gantry operator. During the interdiction, he was required to report to work on Monday and Friday and had to wear uniform and hence justified to claim for uniform allowance.
The 40th Claimant, Mr. Stephen Gatogo, testified that on 29th and 30th march, 2011 he was operating equipment No. RTG 027 while he was on standby in first shift and was also assisting Muona Mbele. The shift in charge Equipment Superintendent Mr. Muthusi while the Equipment was being manned by Katee, Ogutu and Abdille. This notwithstanding, he was warned and interdicted on the 30th March, 2011 even though he was not operating any machine. In February 2012 he was recalled back to work but under punitive conditions including being surcharged, warned against illegal strike and illegal group and placed on probation for 24 Months. Such actions were taken out of malice and out of misinformation to management by one Reginald Waiyaki who deliberately falsified his allocation status by indicating that the 40th Claimant was operating RTG 027.
Charles Kipkoech Kotut, the 78th claimant testified that during the week of 28 march 2011 he was in the third shift and assigned RTG 13 and RTG 19 in import block D and C respectively together with Revy Malikanzi and Pius Cheruiyot. On 31st march 2011, Cheruiyot who started operating RTG 13 was taken ill after inhaling gases from one container and this caused tension at the terminal. This stalled work in the container operations as the environment was not conducive and it affected the overall shift performance.
Due to the hospitalization of Cheruiyot, the claimant was assigned RTG 19 the whole day by his supervisor, Evans Amangalia. On 31st march 2011 he was issued with a warning letter and later an interdiction letter. He remained on interdiction for 10 months under punitive conditions. He was later reinstated back to work.
Joseph Makau Munyao testified that on 31st march 2011 he had just worked in the third shift on 30 march 2011 when he was issued with a warning letter alleging that he had neglected and refused to follow laid down performance targets set by management. There was no prior report to this effect. He was later issued with letter of interdiction meant to punish him and cause him to incur losses and damage arising from unpaid allowances and hence unable to meet his financial obligations. There was no go-slow as alleged and he remained on duty on 29 March 2011 on standby to fill in for sick employees.
Munyao testified that RMG4 had broken down for over 3 months and the managing director had written a memo to this effect. The movement of mobile containers were affected which negatively impacted performance. The respondents failed to address the issues within the policy procedures leading to the victimization of the claimants.
Response
In response, the respondent’s case is that the Claimants are still in the employment of the First Respondent. The Claimants acted in blatant disregard of their terms and conditions of engagement and to the First Respondent's detriment. The First Respondent's actions against the Claimants were lawful, warranted and justified in the circumstances. The Claimants claims for special damages as quantified and/or general or other damages as pleaded are time barred by virtue of the provisions of the Employment Act, 2007.
The Claimants were employed by the 1st Respondent as gantry operators. A gantry is a large crane that is used to load or off load containerized cargo from a ship. At the material time, the gantry operators were demanding an increase in remuneration and a committee was formed comprising of management representatives and two employees representing gantry crane operators. The committee embarked on a fact-finding mission and toured various ports around the world. Upon completion of the fact-finding mission, the committee proposed for consideration that the gantry operators be given an increase in salary of 21,000. The gantry operators were of the view that the proposed increment was not sufficient and they rejected the same and thus on 29th and 30th March 2011, some of them embarked on a go-slow deliberately slowing down operations and failing and/or refusing to adhere to laid down performance targets.
The cranes operate on a 24-hour basis, reports are prepared the next morning. The reports record the number of moves made on a ship. A move is the number of times a crane either loads a container onto a ship or off loads it from a ship. from the report prepared on the morning of 27th March 2011, which was in respect of the work done by the gantry cranes on 26th March 2011, the net number of moves on the Ship identified as ER Lubeck were 15, on the Ship identified as Willi Rickmers the net moves were 35, on the Ship identified as MSC Agata the number of net moves were 12 and, on the Ship, identified as Nicholas Delmas the net moves were 58. The report prepared on the morning of 29th March 2011 in respect of the work carried out on 28th March 2011 indicates that the number of moves made on ER Lubeck was 15, the net moves on Willi Rickmers were 19, the number of moves on Amanda Mayu was 20, the number of moves on Nicholas Delmas was 31 and the number of moves on MSC Peggy was 20. In the morning operations report of 30th March 2011 which was in respect of the work done on 29th March 2011, the net moves on CMA OGM OKAPI were only 6, the net moves on Willi Rickmers were only 8, the net moves on Mayu were only 5 and the net moves on MSC Peggy were only 3. This shows a drastic reduction in the moves between 28th March 2011 and 29th March 2011 and it demonstrates that the gantry crane operators were on a go-slow and that operations had been slowed down.
The go-slow continued on 30th March 2011 as the Mort prepared on the morning of 31st March 2011 indicates the net moves on CMA CGM Okapi were 7, the moves on Willi Rickmers were 18, the net moves on Maersk Alabama were 24, the net moves on Mayu were 3 and the net moves on MSC Peggy were 3. The go-slow ended on 31st March 2011 and it is evident from the morning report prepared on 1st April 2011 in respect of the work carried out on 31st March 2011 that the number of net moves had increased. The net moves on CMA OGM Okapi were 8, the net moves on Saf Marine Zambezi were 16, the net moves on Maersk Alabama were 18, the net moves on Mayu were 23 and the net moves on MSC Peggy were 17. Based on the drastic reduction of the number of net moves on 29th and 30th March 2011, the gantry operators were not operating at optimum capacity and were in fact on a go-slow. The reduction in the number of net moves was not attributable to any other causes.
The First Claimant was not on RTG 16 as alleged and that he was allocated RTG 28. RTG 16 had other operators allocated to it at the material time. In addition, the 1st Respondent states that the export block does not have minimal work as alleged. Other than loading of vessels operators are required to consolidate containers taking into account inter alia factors such as destination, weight and the nature of the cargo. The 1st Respondent states prepares a daily equipment availability report which indicates all the gantry cranes that were in operation and any fault arising on any of the cranes as well as the time taken to repair the fault. The go-slow was not attributed to any other factors as alleged. Such delays would have been addressed differently.
As a result of the go-slow, the 1st Respondent failed to meet its revenue targets for lifting containers (discharge operations) from the ships. There was also a danger that the ship owners would levy a vessel delay surcharge against the 1st Respondent as a result of the delay in lifting of the containers (discharge operations). Due to the loss of revenue and grave risk of charges being levied against it, the 1st Respondent was left with no choice but to issue warning letters to the Gantry operators who participated in the go slow and those who were perceived to be instigating the go slow were also issued with warning letters however they refused to accept the warning letters and sought to interfere with and/or stop the distribution thereof.
The 1st Claimant grabbed the letters being distributed and was sanctioned for his actions. Letters relating to serious matters would be issued only to the Acting Senior Operations Officer and not to a Shift in charge. In this instance, the go-slow had generated serious attention of management. There were reports of operators threatening and intimidating those who were ready to work and actually sabotaged or bullied those who were working. The gantry operators persisted with the go-slow leaving the 1st Respondent with no choice but to interdict them. The 1st Respondent's actions were as a result of the illegal and unlawful actions of the operators engaged in the go slow and were not actuated by any ulterior or other motives as alleged. Its actions were lawful, justified and fair in the circumstances. It acted in accordance with its HR Procedures and Disciplinary Manual in so far as it was possible in the prevailing circumstances. The Claimants were part of the group of gantry operators who were warned and/or interdicted as they were either operating gantry cranes, were on standby duty or were present on the premises and in the area where the go-slow took place and instigated the same.
The 1st Respondent has a duty roster prepared weekly in advance and not daily unless there was a specific reason to change the allocations. The allocations are not altered by hand but rather a new roster is issued if changes are made thereto. The 1st Respondent carried out investigations/enquiries to determine the gantry operators who were involved in the go slow and their level of involvement. In carrying out these investigations the 1st Respondent considered the previous disciplinary record of the gantry operators who were given a fair hearing during this process.
After efforts to negotiate an end to the go slow with the gantry operators failed, the respondents were left with no option but to issue warning letters and then subsequently there were those that were issued with interdiction letters. The gantry operators who were found to have participated in the go slow either by actual participation or incitement of other gantry operators were given an opportunity by the 1st Respondent to attend a personal hearing to give them a fair hearing. Those that were found not to have engaged in the same were allowed to return to work.
Following the personal hearings < >< > and the investigations carried out by the 1st Respondent into the matter, the interdictions in respect of 48 employees were lifted however the said employees were given warnings for participating in the go slow and were also surcharged an amount equivalent of either three months’ salary in respect of some of the employees and two and a half months in respect of other employees. All 48 employees who had been interdicted were surcharged. The Claimants were not singled out or discriminated against as alleged or at all. The decision to recruit gantry operators on a short-term basis was justified in the circumstances. It did not advertise the Claimants jobs as alleged but rather took steps to mitigate against further losses and delays. The allegations of nepotism, tribalism and/or discrimination in this regard are denied. The 1st Respondent was within its rights to levy a surcharge against those Claimants that were found to have participated in the go slow as it had lost revenue as a result of their deliberate and unlawful actions. It was not the lawful avenue to ventilate any dispute that the gantry operators might have had. The Claimants were aware that the go-slow would cause loss of revenue to the 1st Respondent hence hold the Respondent at ransom to accept their grievances. The go slow resulted in a loss of trust and confidence as the operators who were involved demonstrated indiscipline and failure to follow instructions of their superiors.
Placing the Claimants on probation after lifting their interdiction was also justified to enable the 1st Respondent monitor their conduct. Their participation in or incitement of gantry operators to proceed on an unlawful go slow caused grave economic loss and impacted negatively on its operations. Before the Claimants were confirmed to the position of gantry operator, it was made very clear to them that they would be required to maintain a high level of discipline in light of the nature of their duties. In the circumstances, they acted in breach of this requirement.
The 2nd Respondent carries out duties within his lawful mandate. This is a position and not an individual and, in that regard, the claim is misadvised and should be struck out on a preliminary basis.
The response is also that claims as regards the disciplinary action taken against the claimants are time barred by virtue of the provisions of Section 90 of the Employment Act. The warning letters the subject matter of the Claimants complaints were issued on or about 29th or 30th March 2011. The interdiction letters were issued on or about the same period while the decision to inter alia surcharge the Claimants and/or to redeploy those Claimants that were considered culpable was made on or about 30th January 2012. To the extent that any of the Claimants claims have been made outside the three-year period set out in law, the same are time barred and ought to be struck out on a preliminary basis.
The Claimants attempts to enforce the recommendations of a committee or their own proposals to management which were not accepted and were not incorporated into their terms and conditions of engagement is misguided. There was no contractual agreement between the parties in that regard. The failure to follow laid down grievance handling procedures was to their detriment.
The Respondent denies that there is any discrimination as alleged. There are no disparities between the salaries received by the respective job groups but rather the allowances vary taking into account the distinct nature of the jobs in question. The job requirements, qualifications, training and duties of marine operators are distinct from those of gantry operators. The Claimants contracts terms were not varied at the material time. The decision to surcharge the Claimants and the disciplinary action taken against them was justified by their deliberate actions. The 1st is not liable for the consequences of its lawful actions against the Claimants for their breach of their employment ><>><>><>><>><>><>><>><>>>>>><>> ><>>> >>>>><>>> >< >< >< >< >< > >> >>>>><>>>>>>>>>><>>>>>>>><>>>><>< >< >< >< >>>><>>> ><>><>>> ><>>>, ><>>> >>><>><>>>><>>><>><><>>> ><>><>><>><>><>><>>> ><>><>><>>> ><>><>>>. ><>><>>> ><>><>><>>> ><>>>>>><>>> ><>>> >> ><>><>>> >> ><> href="https://new.kenyalaw.org/akn/ke/judgment/keca/2023/894/eng@2023-07-24">The German School Society & another v Ohany & another [2023] KECA 894 (KLR) held that;
There is no contest that a claim premised on a continuing injury must be filed with 12 months after cessation of the injury as provided by section 90. This position was upheld by this Court in G4S Security Services (K) Limited v Joseph Kamau & 468 Others [2018] eKLR. The contestation before this Court is whether the claims in question fall within the ambit of “a continuing injury” as contemplated by section 90. The essential question for determination before the High Court was the maintainability of the complaint due to the limitation period prescribed by the above section. Central to this question is the meaning of the phrase “a continuing injury” and whether the respondent’s claims fell within the said definition. Before the High Court and this Court, the parties did not attempt to define what constitutes “a continuing injury.” …
The principles underlying continuing wrongs and recurring/ successive wrongs have been applied to service law disputes. “A continuing wrong” refers to a single wrongful act which causes a continuing injury. “Recurring/successive wrongs” are those which occur periodically, each wrong giving rise to a distinct and separate cause of action. …
The court also held that;
Normally, a belated service-related claim will be rejected on the ground of delay and laches or limitation. One of the exceptions to the said rule is cases relating to a continuing wrong. Where a service-related claim is based on a continuing wrong, relief can be granted even if there is a long delay in seeking remedy, with reference to the date on which the continuing wrong commenced, if such continuing wrong creates a continuing source of injury. Borrowing from the excerpts reproduced above and considering that the respondent continued to work under the same circumstances, we find and hold that the breach complained of was of a continuing nature, capable of giving rise to a legal injury which assumes the nature of a continuing wrong. It follows that the appellant’s argument that the claims were time barred fails. On the contrary, the said claims fall within the ambit of a continuing wrongs contemplated under section 90.
The claimant’s case is that from 29 to 31 March 2011, they were issued warning letters and interdiction notices to allow for investigations over the alleged go-slow in the gantry operators department. They claim various declarations and accrued allowances. The claims are linked to each other in a series of events commencing with the warnings and interdictions.
The claimants were called for hearings, some were recalled back to work directly and others kept pending until the conclusion of hearings. None lost employment. They have all been reinstated back to work as of February 2012.
The claim herein was filed on 30 January 2015.
There is no schedule on how each claimant was recalled back. The respondents have not provided these details.
From February 2012 to 30 January 2015, the claimants filed their claim within the 3 years contemplated under Section 90 of the Employment Act. Claims for payment of damages and compensations were made within time.
However, claims for payment of allowances which are alleged to be due monthly and while employment was ongoing, were continuing injuries. The claimants remained in the employment of the 1st respondent since there was interdiction and not termination of employment. Under the principles outlined in the case of The German School v Ohany, the continuing injury for alleged accrued allowances in fixed hours allowances for extra hours loss, loss in shift allowances, loss of commuted car allowance, motor transport allowances, salary increment, bonus and uniform detergents were lost. Such should have been instantly addressed as continuing injuries, if at all due.
In this regard, the application of Section 90 of the Employment Act makes these claims for accrued allowances, being continuing injuries accruing monthly. Claims for a continuing injury must be made within 12 months. These claims were due from 29 to 31st March 2011 and were only agitated in this claim on 30 January 2015 outside the 12-month limitation period under Section 90 of the Employment Act. These claims are time barred.
In any event, work allowances are not a salary. Work allowances serve the purpose during service. Fixed allowances for extra hour’s loss only accrue during service. The fixed allowances loss as shift allowance goes with the shift and while the employee is outside the shop floor, such cannot be legitimately claimed as due. Fixed allowances from February 2013 to August 2014 and fixed allowances from September 2014 at 11.5percentage are claimed during a period when the claimants resumed work. Some were transferred and others were redeployed. Allowance due as a gantry operator cannot be transferred or go with a redeployment. The context is different. Whereas claimants in ELRC Petition No.56 of 2014 moved the court expeditiously, the claimants herein waited from 29 to 31st March 2011 to lodge their claims on 30 January 2015. These claims are time-barred.
The claims for loss of commuted car allowance, motor transport allowance, bonus loss from 31st March 2011 and uniform detergents are continuing injuries which should have been claimed within 12 months upon cessation of the injury. In their nature, such claims call for special proof which was not gone into by the claimants.
Regarding salary increments, the claimants were under written terms and conditions of employment. Any salary increment is regulated under the HR policy or by written notice as required under Section 10(5) of the Employment Act. There was no proof that such a claim of salary increment at Ksh.21, 000 from 1st April 2011 accrued automatically from such date to be due and owing.
On the claims made, the court takes judicial notice of the fact that the 1st respondent is regulated under the Kenya Ports Authority Act with the mandate to maintain and regulate all seaports in Kenya.
Under the provisions of Sections 78 and 81 of the Labour Relations Act, the 1st respondent services are listed as part of the essential services. Any go-slow within such an entity is a trigger to other sectors in essential services. Therefore, for the employees of the 1st respondent to enjoy the right to engage in industrial action including that of a go-slow must be balanced in the context of the rights under Article 41 of the Constitution which gives the right to go on strike. See Kenya Ferry Services Limited v Dock Workers Union (Ferry Branch) [2015] eKLR.
Taking into account employees’ constitutional right to participate in industrial action, which ought to be balanced against the general public interest. Each aspect must be addressed with caution and taking into account the limitations under Article 24 of the Constitution. In this case, the 1st respondent’s case is that there was a go-slow based on reduced performance targets by the gantry operators. When employees get agitated over terms and conditions of employment in the essential services sector, the employers are bound to address them instantly to allow for the completion of negotiations and to avert a crisis in such a sector. See County Government of Kakamega & Kakamega County Public Service Board v Kenya National Union of Nurses & Seth Panyako [2017] KEELRC 1634 (KLR).
In the case of Joseph Otieno Oruoch v Kenya Medical Practitioners Pharmacists & Dentists Union & Kenya National Union of Nurses [2021] KEELRC 1147 (KLR) the court held that;
Looking at the right to go on strike against the right to life and applying the principles of Article 24 of the Constitution, we are persuaded that an outright prohibition of the right to go on strike for members of the 1st and 2nd Respondents would derogate from the core of that right, which in our view, is not what the Constitution contemplates.
We are however convinced that the right to go on strike for these workers is qualified and is therefore contingent upon retention of ‘minimum service’ at the affected facilities to ensure that there is no danger to life or health of members of the public.
However, where the issue at hand is related to poor performance of duty as the respondents have urged their case herein, the choice of issuance of warning letters or interdictions should have been followed through to completion with notice of the poor performance to allow each employee to address. A case of poor performance at work is addressed under Section 41 of the Employment Act. Beyond the returns submitted by the in-charge, gantry operators department, such a tool should have been applied as an evaluation measure, and before warnings and interdiction notices were issued to the claimants, they should have been invited to address. An explanation of their poor performance shared where they would in essence be allowed to defend themselves or address their weaknesses. See National Bank of Kenya v Samuel Nguru Mutonya [2019] KECA 404 (KLR).
Where the claimants failed to adhere to instructions as directed by the employer as the respondents have alleged, further recourse was summary dismissal under Sections 44 and 41(2) of the Employment Act. This did not issue.
Upon interdictions and disciplinary hearings, the claimants were recalled back to work. This was not a proper case for summary dismissal. It was equally not a case of termination of employment.
Through notices dated 29 and 31st March 2011, the 1st respondent issued warning notices to the claimants and followed up with interdictions. Whereas the 1st respondent is allowed to issue warning letters to its employees, such is regulated under the HR manual and the various steps to follow are outlined. This is acknowledged by the respondents in their evidence by Ms Mbogo the senior human resources manager and the written submissions. These facts are also addressed by the courts in addressing similar facts arising out of similar causes of action as cited above in ELRC Petition No. 56 of 2014 Joseph Makau Munyao & 4 others v Kenya Ports Authority & the Managing Director; Kenya Ports Authority & another v Joseph Munya & other Cavil Appeal No.134 of2018; and Supreme Court Petition No. E008 of 2023 Kenya Ports Authority v Joseph Munayo & others.
The respondents' failure to adhere to their HR manual in this case is not justified. This is demonstrated by the fact that the claimants were recalled back to work after the various committees were constituted to hear their cases. All were recalled back to work with sanctions of a surcharge, probation or transfer, and redeployment.
Without the due process, the warnings were unlawful.
The interdictions were addressed, except that the claimants are seeking to be paid the allowances that would have accrued had their employment not been interrupted by the warning letters and interdictions.
Whereas an employer is allowed to interdict an employee to conduct investigations into alleged misconduct, employment does not cease. Upon the investigations, the employee who is found innocent is recalled back whereas the employee who is found culpable is issued with a notice to show cause to allow him to attend and make his representations under the provisions of Section 41 of the Employment Act.
In the case of Grace Gacheru Muriithi v Kenya Literature Bureau (2012) eKLR, the court in addressing a similar matter held that;
The court considers that an employee on interdiction or suspension has a legitimate expectation that at the end of the disciplinary process, he or she will be paid by the employer all the dues if the employee is exculpated. Conversely, if the employee is proved to have engaged in the misconduct as alleged and at the end of the disciplinary process the employee has not exculpated himself or herself, the court considers that the employee would not be entitled to carry a legitimate expectation to be paid for the period of suspension or interdiction. Thus, the court holds that whether an employee will be paid during the period of interdiction or suspension will depend upon the outcome of the disciplinary proceedings. It would be unfair labour practice to deny an employee payment during the period of interdiction or suspension if at the end of the disciplinary process, the employee is found innocent. Similarly, it would be unfair labour practice for the employer to be required to pay an employee, during the suspension or interdiction period if at the end of the disciplinary process, the employee is found culpable. Accordingly, the court finds paragraph 6.2.4 of the respondent’s Terms and Conditions of Service to be unfair labour practice to the extent that the provisions deny the employees payment even in instances where they exculpate themselves at the end of the disciplinary process. To that extent, the provision offends Sub-Articles 41(1) of the Constitution; it is unconstitutional.
This position is reiterated by the court in the case of Kutto v County Government of Uasin Gishu & another [2023] KEELRC 2580 (KLR) and the case of Thomas Sila Nzivo v Bamburi Cement Limited [2014] KEELRC 118 (KLR).
In this case, the sanction of probation, transfer and redeployment all arose after the warnings and interdictions had been issued and a direct result after the recall back to work. To place an employee on probation after being confirmed into employment and working for many years is an abuse of the very process the respondents wanted to employ. Where the claimants were found culpable, the HR Manual does not provide for a sanction of probation. Equally, the transfer and redeployment were intended to address what the investigations and disciplinary hearings failed to disclose.
However, the claimants have since been recalled back to work. A transfer or redeployment of an employee is a prerogative of the employer. The employer cannot be gaged from organizing the business by transferring and redeploying employees as necessary. The claimants cannot justify a claim that they could only work as gantry operators at the Port of Mombasa and not anywhere else. In the case of Anne Wairimu Kimani v Kenya Agricultural Livestock Research Organisation (KALRO) [2017] KEELRC 470 (KLR), the court held that the employer was allowed to use its policy to transfer the employee as part of its prerogative to organize the business as appropriate.
The Supreme Court in Petition No. E008 of 2023 – Kenya Ports Authority v Joseph Makau Munyao & others has since pronounced itself in this matter and this court is bound. That;
Looking at the Disciplinary Handbook the same provides for various forms of punishment listed as follows; (a) verbal caution or warning, (b) suspension from duty for a period not exceeding three (3) days, (c) stoppage of annual increments (d) surcharge (e) termination of contract (f) forfeiture of appointment (g) retirement/termination on public interest (h) dismissal. We therefore, agree with the superior courts that redeployment was not one of the punishments envisaged in the disciplinary handbook; we also agree that the appellant did not equate the loss incurred, and the surcharge was arbitrary and not in conformity with the disciplinary handbook which provided for a maximum of three-month surcharge. [Underline added].
Engaging in unfair labour practices is prohibited under Article 41 of the Constitution. The 1st respondent does not justify why, despite having a robust HR manual, supervisors and managers failed to address the issues within the internal mechanisms or seek court protection where they noted the go-slow simmering at the shop floor. The resulting warnings, interdictions and disciplinary hearings were contrary to fair labour practices. Ultimately, the recall back to work with sanctions including probationary terms while the claimants had worked and been confirmed in their employment was a further perpetuation of such unfair labour practices. This is prohibited under Article 41 of the Constitution.
The claimants are seeking damages for the unfair labour practices. The Court of Appeal in addressing the case of Kenya Ports Authority & Managing Director Kenya Ports Authority v Joseph Makau Munyao, Elius Njoka, Stephen Baya Mwanyule, Mwinyi Suleiman Sibabu & Bwana Mohamed Bwana [2019] KECA 498 (KLR) relied on the case of Albacruz (Cargo Owners) vs. Albazero (Owners), The Albazero and D.K Njagi Marete v Teachers Service Commission and held that;
It cannot be gainsaid that the essence of an award of damages is compensatory in nature to the aggrieved party. This much was appreciated in Albacruz (Cargo Owners) vs. Albazero (Owners), The Albazero [1976] 3 All ER 129 by Lord Diplock who aptly set out the object of an award of damages as follows:-
“As in tort, 'the general rule in English law today as to the measure of damages recoverable for the invasion of a legal right, whether by breach of a contract or by commission of a tort, is that damages are compensatory. Their function is to put the person whose right has been invaded in the same position as if it had been respected so far as the award of a sum of money can do so.”
… D.K Njagi Marete -vs- Teachers Service Commission- Industrial Cause No. 379 of 2009 that:
“This Court has advanced the view that employment remedies must be proportionate to the economic injuries suffered by the employees. These remedies are not aimed at facilitating the unjust enrichment of aggrieved employees; they are meant to redress economic injuries in a proportionate way.”
The claimants urge the court to apply the award of damages based on 12 months’ salary. In the written submissions the claimants have not delved into the rationale for the application of such multiplier for general damages as against an award of compensation as distinguished by the Supreme Court in Petition No. E008 of 2023 – Kenya Ports Authority v Joseph Makau Munyao & others. However, to secure justice and to allow for a rationalized assessment of what damages should be paid, an award of 3 month’s salary to the claimants against the 1st respondent is hereby found justified.
The claimants are entitled to damages at the rate of 3 months' salaries each.
The court takes into account that the respondents have since paid the surcharge amounts through consent outlined above. These amounts were paid with a 12percentage interest, which places them in good standing. For claimed costs, an award of 50percentage is found appropriate.
There are no specific orders sought against the 2nd respondent.
Accordingly, the claim against the 1st respondent is hereby found with merit to the extent of violation of fair labour practices and the following awards;
- Damages at 3 months’ salary for each claimant;
- Costs at 50percentage;
- Parties to tabulate (a) above for adoption within 30 days;
- Mention on 9 December 2024.
Delivered in open court at Mombasa on this 31st day of October 2024.
M. MBARŨ
JUDGE