Nyali International Beach Hotel v Mpe Shindo Bundi & 146 others [2017] KEELRC 1209

18. LAWRENCE TSORI 19. SIMON MUTUKU 20. KIOKO KAKULI 21. DAMIAN MUTHOMI 22. MARTIN SHISIA 23. GERALD MWOJA 24. JULIUS KAMBALE 25. CARLOS WASWA 26. PASCAL TUNJE 27. BEATRICE OCHOLA 28. JANET AKINYI 29. KASSIM KALUME NGOLLO 30. PETER MULANDI 31. PAUL JUMA ABILA 32. ISAACK OGUL 33. MARY ANNE ACHIENG’ AYOO 34. DOMINICK KAGASI 35. ALFRED KITHINJI RUU 36. DICKSON KISILU KIMUY 37. FLORA AYESA IKUTWA 38. SAMUEL KAMAU KARIUK 39. ANTHONY OCHIENG’ OMONDI 40. JAMES MUTHAMI MUTUN 41. GILBERT RUNGUA 42. SALOME MUKABWA 43. MICHALE MWAI MATHAI 44. SEIF ALI 45. LUCY NJERI

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46. VIVIAN BANDA 47. FRANCIS MAINA MURIITHI 48. MONICA KADOWE 49. ALBERT PEKU 50. ALEX MUANGE 51. NELSON IDDI 52. NASSOR MOHAMED MWAPESA 53. FLORENCE KISAKA 54. PILI KAHINDI KITHI 55. AGNES MWALUMA 56. LILLIAN MARIGA IRUMBA 57. DANSTON KHAYEGA 58. MWAYUGA HUDSO 59. ELSOPHAN WANDERA 60. TOBIAS MKAYA 61. PETER MUTHENGI 62. TEBRA IMARI EBUYA 63. BOAZ OTIENO OLOTO 64. RUPHENCE NJEGHE KITAWA 65. BAKARI TSULU MWADUDU 66. JOSEPHINE SAKI 67. SAMUEL NGAO 68. TERESY MUTHEI MAILU 69. PHILEMEON MWANGASHI MARI 70. ALEX CHARO MKOKA 71. GRACE CHAO MWABILI 72. LILIAN CHEGE 73. IRENE APIYO

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74. DANIEL ORITO 75. RICHARD OCHAMI 76. SHADRACK MAKUPE 77. JUMA MASHALA 78. TUKIKO OJWANG’ 79. GEORGE INGASO 80. RASHID ATHUMANI KASSIM 81. DOMINIC MUTHUVI 82. NETO AUGUSTINO 83. DUNCAN LENJO 84. ALFRED M. MUSYA 85. JOHN NJERU MPURIA 86. BRYSON MWANJALA 87. HAMISI BAKARI 88. PETER KOECH 89. GASPER OKWACHI MWANYOTA 90. WASHINGTON O WAKA 91. JAMES MVURYA WANINI 92. TSUMA NYAMAWI 93. AMUR ABDALLA 94. VICTOR GITONGA 95. THOMAS ELVIS KIPLANGA 96. ISAAC WANAMBUKO MATSILI 97. JAMES NYUMU KIOKO 98. DAVID EMBWAKA MATSILI 99. JAMES MADAKAA 100. PAUL MBOYA 101. BENSON MUTIMBA

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102. EDWARD CHOME 103. ISSACK SONJE 104. SAMUEL KARIUKI KAMAU 105. KASSIMU SIMIDI BULIMU 106. VICTOR MWAKWARI MAGHENYI 107. JOSEPH NGOA 108. MOKI MUTHAMA 109. DONALD TUVA 110. JAMES VUNDI 111. HUMPHREY MAINA 112. MORRIS JILANI 113. SCOVIA SOITA 114. UHURU MUTUA 115. DUNCAN LUVASO 116. KENNEDY SAMUEL GUNGA 117. DICKSON ADUDA 118. ARTHUR SHIKANGA 119. BERYL ATIENO 120. DANIEL YALLA 121. JOEL NYANDORO 122. MOSES OMULO ODHACH 123. REUBEN SHIEMI ISSIYE 124. RUDY GAKURE 125. RACHEL WANJALA 126. NAHASHON MLATI 127. SAMUEL K. MUNALA 128. SIMON MWANGEMI 129. JOSHUA MUGWIRIA

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130. SAID USAMA 131. DENNIS NYANDEGE MARIIITA 132. BENSON LUGANJI 133. MOHAMED MZEE 134. TABITHA MOGIRE 135. EMILY OYUGI 136. PETER MUTHENGI 137. HARRISON MWARINGA 138. GARDINER ARUNGA 139. JONATHAN SULUBU 140. JOHN NJUGUNA MUKIRI 141. ERNEST MUTUNGI PETER 142. CAXTON NGONYO NGUMBAO 143. ELIZABETH WALI WACHIA 144. PETER GARAMA 145. NELLIE W. MACHARIA 146. ALFANI SALIMU MWAZECH....RESPONDENTS RULING 1. The Claimant is a Beach Hotel at Mombasa, the Respondents its Employees. On 25 th November 2016, the Respondents wrote to the Claimant a 14- day notice, calling on the Claimant to pay them their arrears of salary, allowances and service charge in full, failing which they would stage a sit-in, until payment is made in full. 2. The Claimant filed this Claim on 16th December 2016 under Certificate of Urgency, seeking a declaration that the intended industrial action by the Respondents is illegal; the Respondents are permanently restrained from calling for industrial action without following the proper channel as provided for under the applicable CBA; and the Court issues directions for conciliation as a matter of urgency. 3. With the Claim is filed an Application for interim measures. The Claimant seeks to have the Respondents compelled to withdraw their sit-in notice pending hearing and determination of the Application; the Respondents are restrained from calling for any other industrial action against the Claimant pending hearing and determination of the Application; the Respondent are restrained from calling for industrial action against the Claimant without following due procedure, pending hearing and determination of the Claim; the intended Industrial action is declared illegal, un-procedural and unprotected; the Court issues directions on conciliation; and costs be in the cause. 4. The Court granted interim measures to the Claimant on 16 th December 2016 restraining the

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Respondents from going on with the intended sit-in, and granted the Respondents 7 days to file their Response. It was ordered the Claimant serves the Summons and Pleadings upon Kenya Union of Domestic, Hotels, Educational Institutions, Hospitals and Allied Workers, who represent the Respondents. 5. The Respondents filed an Application dated 8 th February 2017, now acting through their Union KUDHEIHA, asking the Court to order the Claimant to pay their arrears of salary, calculated at Kshs. 9,745, 0000 at the time of filing the Application. The Claimant filed a Replying Affidavit through its Resident Manager Peter Kiarie sworn on 22nd February 2017. Its position is that the Claimant has paid the Respondents their salaries and service charge. Kiarie further states the Respondents disobeyed the Court order and went ahead with their sit-in in the presence of journalists whom they had invited to give coverage. 6. The Claimant also filed a Notice of Preliminary Objection against the Respondents’ Application. It is submitted that the grievances or complaints raised in the Application are localized and subject to the determination of the Coast Disputes Committee and or the Joint Industrial Council, under the Parties’ Recognition Agreement. 7. Parties agreed the 2 Applications and the Preliminary Objection are considered and determined on the strength of the record. They confirmed the filing of their Submissions at the last mention in Court, on 21 st March 2017. The Court Finds:8. There is no point in over-blowing this dispute. At the core is a grievance by the Employees about nonpayment by the Employer, of their salaries and service charge. As a means of recovering what they think is owed to them, the Employees threatened to withhold their labour. The Employer instigated this Claim, to protect its business from the disruption that comes with such industrial upheavals. 9. The Claimant’s position is that the Respondents have been paid their salaries and service charge. The dispute is whether payment has been made or not. It is a dispute which can be resolved by the Labour Officer, investigating the employment records at Nyali Beach Hotel, in the presence of the representatives of the Management and KUDHEIHA, and ascertaining if salaries and service charge have been paid. If they have been paid then the dispute should resolve itself. If they have not been paid, then the Court suggests we try the following:a) The Labour Officer has the option of prosecuting the Claimant’s Management for wage offences. b) The Respondents, if confirmed they are owed salaries and service charge, have the right to withdraw their labour, but only under the industrial action mechanisms and procedures contained in KUDHEIHA Constitution and the Recognition Agreement between KUDHEIHA and the Union of Kenya Hotelkeepers and Caterers Association, of which the Claimant is a Member. c) The Labour Officer shall file his Report in Court detailing if salaries and service charge are owed, and the Respondents shall be at liberty to apply for summary judgment against the Claimant, based on the findings of the investigation. d) The Court does not agree with the Claimant that the grievance raised through the Respondents’ application is localized and beyond the jurisdiction of the Court. Salaries and wages are protected and it is the duty of the Court throughout, to ensure they are paid when they fall due, and ensure offenders are punished under the Employment Act and the Labour Institutions Act. Why would the dispute raised by the Claimant fall within the jurisdiction of the Court, while that raised by the Respondents is deemed premature? 10. The right to industrial action is a useful tool in the hands of Employees, in enforcing employment rights. It should not be stifled. It is as good as the execution of a decree issued by the Court. It compels

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compliance. It should however be exercised within the confines of existing workplace labour contracts. Exercised otherwise, it becomes an out-law industrial action. Lastly, the Court wishes to emphasize that alternative dispute resolution mechanisms should not be manipulated to muddy, delay or deny Employees’ right to the toil of their labour. Salaries and wages must be paid when they fall due, unless the Employee has given his consent for deferment. IT IS ORDERED:a) The order barring the Respondents from engaging in industrial action is extended for 40 days from the date of this ruling. b) Proceedings before this Court are stayed for 40 days, and the dispute referred to the County Labour Office for investigation. c) The County Labour Office shall, in the presence of Claimant’s Management and KUDHEIHA Officials examine Employees’ records at the Hotel, and find out if there are salaries and service charge owed. d) At the end of 30 days the Labour Officer shall file his findings with the Court, and avail copies to the Parties, after which, depending on the findings, the Respondents may pursue industrial action under the procedure contained in their Unions’ Recognition Agreement and Constitution; the Labour Officer may prosecute Management for wage offences; or the Respondents apply in Court for summary Judgment of ascertained arrears of salary and service charge. e) The 2 Applications and Objection filed by the Parties are disposed of on these terms. f) Both Parties shall extract a copy of this Ruling and Order, and serve it upon the County Labour Office Mombasa. g) Parties shall move the Court at the end of 40 days from the date of this Ruling. h) Costs in the cause. Dated and delivered at Mombasa this 12th day of June 2017. James Rika Judge

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