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ELRCPartially AllowedNot stated in the judgment as provided· [2022] KEELRC 498 (KLR)

Athuman Khamisi Mzee & 7 others v Dich Trading Limited & another [2022] KEELRC 498 (KLR)

Employment and Labour Relations Court
18 March 2022
BOByram Ongaya
845 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~3 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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Eight claimants, employed in January 2016 as seafarers on MV Queen Bihanga under contracts with the 2nd respondent, claimed unpaid wages of USD 77,450.00 jointly and severally from the respondents. They pleaded that on arrival in Manila the vessel was unseaworthy, that they were abandoned in Manila and Jakarta, that some were arrested, charged and deported, and that the respondents failed to honour a tripartite agreement reached at a meeting on 11.10.2017 facilitated by the Kenya Marine Authority and the ITF, at which the 2nd respondent agreed to pay USD 79,800.00 in lieu of accrued wages. The respondents did not enter appearance, file a statement of response, or attend the hearing despite service. Each claimant testified and final submissions were filed for the claimants. The Court found that contracts of service existed as pleaded; that the claimants went through the predicament of being arrested and charged; and that the tripartite meeting took place with the 2nd respondent agreeing to pay the accrued wages, with no evidence of payment. It held that on a balance of probability the claimants were entitled to judgment as prayed. The prayer for damages for detention was deemed abandoned or unjustified for want of submissions. Judgment was entered jointly and severally for USD 77,450.00, payable by 01.06.2022, failing which interest at Court rates would run from 22.05.2018 until full payment, together with the claimants' costs of the suit.

Key legal issues

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01

Existence of contracts of service

Holding

Contracts of service existed between each claimant and the respondents as pleaded, based on oral testimony and exhibited contracts

Reasoning

Each claimant testified in support of the claim and exhibited their respective contracts of service for work as seafarers on MV Queen Bihanga. The respondents did not enter appearance or file a statement of response despite service, leaving the claimants' evidence uncontroverted. The Court therefore found the pleaded contractual relationship established.

p. 2
02

Liability for unpaid wages under the tripartite agreement

Holding

The respondents are liable to pay the claimed wages since the 2nd respondent agreed at the tripartite meeting to pay USD 79,800.00 and there was no evidence of payment

Reasoning

The minutes of the tripartite meeting held on 11.10.2017 at KMA Headquarters were exhibited and showed the 2nd respondent agreed to pay USD 79,800.00 in lieu of the claimants' accrued wages. In the absence of evidence of payment, the Court held on a balance of probability that the claimants were entitled to judgment as prayed.

p. 2

Legal principles established

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  • Where a respondent fails to file a statement of response and uncontroverted evidence establishes the pleaded employment relationship and unpaid wages, the claim succeeds on a balance of probability

Court orders

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  1. 1.Judgment entered for the claimants against the respondents, jointly and severally, for payment of USD 77,450.00, to each claimant as particularised in the memorandum of claim
  2. 2.Payment to be made by 01.06.2022, failing which interest at Court rates from the date of filing suit on 22.05.2018 until full payment
  3. 3.Payment of the claimants' costs of the suit
Jurisdiction invoked
Employment and labour relations jurisdiction (memorandum of claim filed in the Employment and Labour Relations Court)

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, "Athuman Khamisi Mzee & 7 others v Dich Trading Limited & another [2022] KEELRC 498 (KLR)", Case Analysis (2022). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/498/eng@2022-03-18

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