Didovsky Igor & 11 others v International Bulk Carrier Spa & 2 others [2015] KEELRC 1460 (KLR)

The Court applied the definition of 'Employer' under Section 2 of the Merchant Shipping Act 2009 and the Employment Act 2007, and the Bareboat Charter clause vesting manning and control in the Charterers. The 1st Respondent transferred possession, control and the right to employ the Master and Crew; it did not recruit, control, or pay the Claimants. The registered Owner therefore had no cause of action against it on the employment contract.

The Claimants were abandoned without wages, food, water, power or security aboard a stricken, unseaworthy vessel they could not lawfully leave, being compelled by maritime obligations to keep it moored and safe. The Court held this fitted compulsory or forced labour under Section 4 of the Employment Act 2007 and Article 30 of the Constitution, and violated ILO Forced Labour Conventions. The High Court's intervention only mitigated, and did not fully redress, the injury.

The Court held the wages and expenses recovered through the Admiralty Court did not compensate for breach of contractual and implied employment terms, nor for exposure to inhumane conditions. However, the Court criticised the splitting of claims, holding all claims should have been brought in one Cause before the Industrial Court given its exclusive post-2010 jurisdiction over employment disputes.

The Court considered the ALPHA MANYARA decision, which limited admiralty claims to wages under Section 20 of the UK Supreme Court Act 1981 via Section 4 of the Judicature Act, and held that approach outdated following the Constitution of Kenya 2010 and the establishment of the Industrial Court. Kenya's ratification of the Maritime Labour Convention 2006 demands legislative reform to enable the Industrial Court to exercise admiralty labour jurisdiction.

The Counterclaim lacked a Verifying Affidavit, witness statements and supporting evidence; the value of the vessel was never quantified; the sale followed a Court process not appealed, stayed or overturned; and the 1st Respondent's proper remedy was indemnity in the UK arbitration under the Bareboat Charter.