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ELRCPartially AllowedNot stated in the judgment· [2016] KEELRC 1294 (KLR)

Kenya Union of Domestic, Hotels, Educational Institutrions, Hospitals & Allied Workers v Board of Governors,Kirinyaga Technical Institute (Cause 668 of 2010) (Employment and Labour) [2016] KEELRC 1294 (KLR)

Industrial Court of Kenya (Employment and Labour Relations Court)
22 April 2016
507 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~2 min to read original · ~4 min brief

The bottom line

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A Kenyan employer that ignores an employment claim can lose by default, and the court awarded 19 workers their unpaid wages.

What this practically means

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Executive summary

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KUDHEIHA sued the Board of Governors, Kirinyaga Technical Institute on 10 June 2010, alleging underpayment of wages measured against the civil servants' salary scales of 1997 and 2008 and the Regulation of Wages (General)(Amendment) Orders, and also pleaded unlawful redundancy without seeking any prayers on it. Leave to amend was granted in October 2010 and a Supplementary Memorandum of Claim was filed on 12 November 2010. The Respondent never filed a Response. The Cause was heard on 6 July 2011 before Madzayo J, who indicated he would deliver an award on 14 July 2011, but no award appears to have been delivered and the file lay dormant until it was listed during the Court's service week in Nairobi from 18 to 22 April 2016. Notices were issued through the Court's notice board, daily newspapers, online platforms and individual notices to the parties. When the Cause was called on 18 April 2016, only KUDHEIHA was represented; the Respondent did not attend. The Union relied on the record. Radido J, invoking Rule 21 of the Industrial Court (Procedure) Rules, 2010, which permits determination of a Cause on the record, considered the pleadings and the Conciliator's report appointed by the Minister for Labour dated 20 November 2008. Finding the Union's assertions uncontroverted and supported by exhibited Circulars and Wages Orders, the Court held that the 19 named Grievants were underpaid for 12 months and entered judgment for specific sums for each Grievant, ranging between Kshs 20,220 and Kshs 25,200, and made no order as to costs.

Key legal issues

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01

Underpayment of wages of the Grievants

Holding

The Court found that the Grievants were underpaid for a period of 12 months and entered judgment for specific sums per Grievant.

Reasoning

The Respondent filed no Response to the Cause and did not participate in the hearing, leaving KUDHEIHA's assertions uncontroverted. The Union exhibited Circulars and Regulation of Wages (General)(Amendment) Orders, and the Court also considered the Conciliator's report appointed by the Minister for Labour dated 20 November 2008. On that unchallenged material, the Court accepted the Union's contention that the Grievants were underpaid for 12 months and quantified the awards per Grievant.

p. 2
02

Determination of a Cause on the record in the absence of the Respondent

Holding

The Court proceeded to determine the Cause on the record under Rule 21 of the Industrial Court (Procedure) Rules, 2010.

Reasoning

After service of hearing notices via the Court's notice board, daily newspapers, online media and individual notices, the Respondent neither appeared nor was represented when the Cause was called out on 18 April 2016 during the Court's service week. Rule 21 of the Industrial Court (Procedure) Rules, 2010 permitted the Court to determine the Cause based on the record, and the Union relied on the record.

p. 1

Legal principles established

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  • Under Rule 21 of the Industrial Court (Procedure) Rules, 2010, the Court may determine a Cause based on the record where a party does not participate.
  • Unchallenged facts asserted by a claimant, supported by exhibited documents, may found a finding of underpayment of wages.

Court orders

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  1. 1.Judgment entered for the Grievants against the Respondent for the underpayment of wages for a period of 12 months, with specific sums awarded to each of the 19 named Grievants (ranging from Kshs 20,220 to Kshs 25,200)
  2. 2.No order as to costs

Authorities

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Legislation

  • Regulation of Wages (General)(Amendment) OrdersNot specified
  • Industrial Court (Procedure) Rules, 2010Rule 21
Jurisdiction invoked
Industrial Court jurisdiction under the Industrial Court (Procedure) Rules, 2010 (Rule 21) over an employment cause alleging underpayment of wages

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kenya Union of Domestic, Hotels, Educational Institutrions, Hospitals & Allied Workers v Board of Governors,Kirinyaga Technical Institute (Cause 668 of 2010)  (Employment and Labour) [2016] KEELRC 1294 (KLR)", Case Analysis (2016). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1294/eng@2016-04-22

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.