Evans Wafula Shikuku & 18 others v Jiangxi Zhongmei Engineering Construction Limited [2018] KEELRC 1580 (KLR)

Annual leave TOTAL Kshs.36,000/= KSHS.1,005,120/= 3RD CLAIMANT – KENNEDY MURUMBA Under payments Kshs.158,640/= Lost hours Kshs.142,800/= House Allowance Kshs.42,840/= NSSF & NHIF Funds Kshs.8,840/= Annual leave Kshs.16,800/= TOTAL KSHS.369,920/= 4TH CLAIMANT – ARNOLD FTYANG Under payments Kshs.158,640/= Lost hours Kshs.142,800/= House Allowance Kshs.42,840/= NSSF & NHIF Funds Kshs.8,840/= Annual leave Kshs.16,800/= TOTAL KSHS.369,920/= 5TH CLAIMANT – SIFUNA WANYAMA Under payments Kshs.158,640/= Lost hours Kshs.142,800/= House Allowance Kshs.42,840/= NSSF & NHIF Funds Kshs.8,840/= Annual leave Kshs.16,800/= TOTAL KSHS.369,920/= 6TH CLAIMANT – MARK CHEROBEN KIPTUM Under payments Kshs.138,720/= Lost hours Kshs.117,600/= House Allowance Kshs.35,280/= NSSF & NHIF Funds Kshs.7,280/= Annual leave Kshs.16,800/= TOTAL KSHS.316,680/= 7TH CLAIMANT – JOSPHAT MWANGI MATHIKA

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Under payments Kshs.228,000/= Lost hours Kshs.252,000/= House Allowance Kshs.75,600/= NSSF & NHIF Funds Kshs.7,280/= Annual leave Kshs.36,000/= One month notice in lieu Kshs.36,000/= Five months that would have been worked Kshs.180,000/= TOTAL KSHS.815,880/= 8TH CLAIMANT – DAVID NYANUMBA NDUBI Under payments Kshs.148,800/= Lost hours Kshs.180,000/= House Allowance Kshs.54,000/= NSSF & NHIF Funds Kshs.5,200/= TOTAL KSHS.388,000/= 9TH CLAIMANT – EDWIN BITANGE AREGE Under payments Kshs.148,800/= Lost hours Kshs.180,000/= House Allowance Kshs.54,000/= NSSF & NHIF Funds Kshs.5,200/= TOTAL KSHS.388,000/= 10TH CLAIMANT – GEOFFREY OMATO NYAKERIGA Under payments Kshs.264,000/= Lost hours Kshs.306,000/= House Allowance Kshs.91,800/= NSSF & NHIF Funds Kshs.8,840/= Annual leave Kshs.36,000/= TOTAL KSHS.706,640/= 11TH CLAIMANT – FALLEN NYAKUNDI Under payments Kshs.138,960/= Lost hours Kshs.117,600/= House Allowance Kshs.35,280/= NSSF & NHIF Funds Kshs.7,820/=

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Annual leave Kshs.16,800/= TOTAL KSHS.325,920/= 12TH CLAIMANT – BENARD W. KEYARI Under payments Kshs.141,120/= Lost hours Kshs.117,600/= House Allowance Kshs.35,280/= NSSF & NHIF Funds Kshs.7,820/= Annual leave Kshs.16,800/= One month notice in lieu Kshs. 16,800/= Five (5) months that would have been worked Kshs.84,000/= TOTAL KSHS.418,880/= 13TH CLAIMANT – OSOU E. SHEM Under payments Kshs.249,600/= Lost hours Kshs.198,000/= House Allowance Kshs.59,400/= NSSF & NHIF Funds Kshs.5,720/= TOTAL KSHS.512,720/= 14TH CLAIMANT – JOSEPH BARASA Under payments Kshs.141,120/= Lost hours Kshs.117,600/= House Allowance Kshs.35,280/= NSSF & NHIF Funds Kshs.7,820/= Annual leave Kshs.16,800/= TOTAL KSHS.318,080/= 15TH CLAIMANT – MOSES WANAMBISI KARANI Under payments Kshs.231,552/= Lost hours Kshs.182,580/= House Allowance Kshs.39,505/= NSSF & NHIF Funds Kshs.8,840/= Annual leave Kshs.15,492/= TOTAL 16TH CLAIMANT – ELIAS WANJALA KSHS.477,969/=

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Under payments Kshs.125,040/= Lost hours Kshs.144,000/= House Allowance Kshs.43,200/= NSSF & NHIF Funds Kshs.12,480/= Annual leave Kshs.24,000/= TOTAL KSHS.348,720/= 17TH CLAIMANT – PAUL JOSEPH SIMIYU Under payments Kshs.24,336/= Lost hours Kshs.41,076/= House Allowance Kshs.12,322/= NSSF & NHIF Funds Kshs.3,640/= TOTAL KSHS.81,374/= 18TH CLAIMANT – JOSEPHINE NASAMBU WALELA Under payments Kshs.219,456/= Lost hours Kshs.193,320/= House Allowance Kshs.41,850/= NSSF & NHIF Funds Kshs.9,360/= Annual leave Kshs.21,480/= TOTAL KSHS.465,556/= 19TH CLAIMANT – LUCY INDUSA Under payments Kshs.630,000/= Lost hours Kshs.441,000/= House Allowance Kshs.132,300/= NSSF & NHIF Funds Kshs.10,920/= PAYE Kshs.1,401/= Annual leave TOTAL Kshs.42,000/= KSHS.1,267,621/= The respondent did not file a defence to the claim or attend court for hearing. in view of the sketchy information and documentation in the claim and in view of the fact that what is claimed is within the powers of the Labour Officer to investigate under Section 87 of the Employment Act and Section 35 as read with Section 48 of the Labour Institutions Act, I referred the case to the County Labour Officer, Trans Nzoia to investigate and file a report to assist the court to arrive at a just and fair determination of the claim. The Labour Officer filed his report in court on 24 th February 2017. The findings in the County Labour Officer’s report are reproduced below – “In pursuance to the court’s directive that the above matter be investigated and report submitted to the court.

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The following are the findings of each claimant: 1. Evans Wafula Shikuku Evans Wafula Shikuku was employed a general labourer in February 2013 and his employment terminated on 23/12/2014. He was paid terminal dues all totalling to Kshs.23,900/= and he acknowledged receipt. 2. Leonard Simiyu Mukhebi Leonard was employed in 2013 as a leveller at a back wage of Kshs.17,550/= per month until March 2016 when his employment was terminated due to reduction of work. He was paid terminal dues which consisted of:- • • Prorata leave - Severance pay 1,519.00 - 28,350.00 Total 29,869.00 Mr. Leonard Simiyu received the money and acknowledged the same. 3. Kennedy Murumba Kennedy Murumba was employed as a general worker in June 2013 and his employment ended in June 2014. He was paid terminal dues amounting to Kshs.11,600/=. 4. Josphat Mwangi Mathiaka Mr. Mathiaka was employed in September 2013 as a leveller and his employment ended in June 2016. He was paid final dues which consisted of: - • • One month’s notice - Gratuity 19,500.00 - 19,500.00 Total 39,000.00 Mr. Mathiaka acknowledged receipt. 5. David Nyanumba Ndubi Mr. Ndubi was employed in January 2014 as a foreman and left in November 2014. He did not compete the year. He was paid his final dues amounting to Kshs.16,200/=. 6. Edwin Bitange Arege Mr. Arege Bitange was employed in January 2014 as a surveyor and left in November 2014. He did not complete the year. He was paid his terminal dues amounting to Kshs.14,400/=. 7. Josephine Nasambu Walela Ms Walela was employed in February 2013 as a lab attendant and left employment on 27 th January 2014. She was paid her terminal dues of notice, leave and salary amounting to Kshs.33,400/=. The following employees are still working for the employer – 1. Arnold Etyang 2. Benedict Sifuna Wanyama 3. Mark Cheroben Kiptum 4. Geoffrey Omato Nyakeria 5. Fallen Nyakundi

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6. Bernard W. Keyari 7. Oson E. Shem 8. Joseph Barasa 9. Moses Wanambisi Kkarani 10. Elias Wanjala 11. Paul Joseph Simiyu 12. Lucy Indusa The above are still in employment therefore it is premature to lodge claims against the employer. NOTES Note I – Underpayment The underpayments arrears as demanded by claimants is outrageous in the sense that the counsel calculated it basing on hourly rate which is not provided for in the Building and Construction Industry Wages Order. This order provides that employees in the category of drivers, artisans, general workers be paid on daily rate only. There is no provision for payment of wages on hourly rate. Note II – Lost hours Lost hours cannot be explained but it is assumed to be the overtime. This claim is not valid in the sense that all employees who worked extra hours were paid overtime and this can be validated through the records presented by the counsel to the court. Note III – N.S.S.F AND N.H.I.F Refunds N.S.S.F and N.H.I.F are statutory deductions which claimants cannot ask for refunds from employer. If the claimants have any sufficient reason to believe these deductions were not remitted then they can contact these organisations. Note IV – House Allowance This issue can be considered after verification of records. Where it is found that some of these claimants were not paid house allowance, then the claimants can claim for the same to a maximum of 12 months.” Upon receipt of the report of the Labour Officer, counsel for the claimants was directed to file written submissions on the basis of which the court would write the judgment. In the written submissions filed on 19 th May 2017, the claimants withdrew their claims in respect of house allowance, NSSF and NHIF deductions and PAYE. This leaves only the claims on underpayments, overtime and annual leave for determination It is submitted that the claimants were paid bellow the statutory minimum rates of pay applicable between 2012 and 2014. It is further submitted that the respondent also flouted an agreement reached in a Return to Work Formula dated 13 th September 2014 witnessed by the County Labour Officer, Bungoma. On overtime it is submitted that claimants worked for 12 hours daily from 7.00 a.m. to 7.00 p.m. thus putting in four hours of overtime daily which they were not compensated for. That in addition they worked for 7 days without a rest day hence the claim for extra hours and rest days. On annual leave it is submitted that all the claimants were not allowed to go on annual leave and were not paid in lieu thereof. The final claims for each of the claimants are as follows – NAME 1. Evans Shikuku Wafula UNDERPAYMENTS LOST ANNUAL HOURS/OVERTIME LEAVE 177,600 176,400 16,800 PAY IN LIEU OF TOTAL NOTICE 370,800

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2. Leonard Mukhebi Simiyu 466,600 378,000 36,000 3. Kennedy Murumba 158,640 142,800 16,800 4. Arnold Etyang 158,640 142,800 16,800 5. Sifuna Wanyama 158,640 142,800 16,800 6. Mark Kiptum Cheroben 138,720 117,600 16,800 7. Josphat Mathiaka Mwangi 228,000 252,000 36,000 8. David Ndubi Nyanumba 148,800 180,000 328,800 9. Edwin Arege Bitange 148,800 180,000 328,800 Geoffrey Omato 264,000 306,000 36,000 11. Fallen Nyakundi 138,960 117,600 16,800 12. Bernard W. Keyari 141,120 117,600 16,800 13. Oson E. Shem 249,600 198,000 14. Joseph Barasa 141,120 117,600 16,800 231,552 182,580 15,492 125,040 144,000 24,000 17. Paul Joseph Simiyu 24,336 41,076 10. Nyakeria Moses 15. Kkarani Wanambisi 16. Elias Wanjala Josephine Nasambu 880,600 318,240 318,240 318,240 273,120 36,000 552,000 606,000 273,120 16,800 293,320 447,600 275,520 429,624 293,040 65,412 18. Walela 219,456 193,320 21,480 19. Lucy Indusa 630,000 441,000 42,000 The claimants relied on the case of – 1. Evans Katiezo Aligulah -v- Eldomatt Wholesale and Supermarket Limited [2016] eKLR. 2. John Rioba Maugo -v- Riley Falcon Security Services Limited [2016] eKLR. 434,256 1,113,000

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3. Kenya Guards and Allied Workers Union -v- Lavington Security Limited [2013] eKLR. Determination I have carefully considered the pleadings and the documents filed with the pleadings, the County Labour Officer’s report and the written submissions filed on behalf of the claimants. The issues arising for determination therefore are the following – i. Whether the claimants were underpaid by the respondent. ii. Whether the claimants are entitled to overtime as claimed. iii. Whether the claimants are entitled to annual leave. i. Underpayments In both the claim and the submissions it is alleged that the claimants were paid wages below statutory minimum rates of pay. The prayer for underpayments is based on hourly rates of pay. However in the report of the County Labour Officer, it is stated that the claimants were paid monthly rates of pay. The claimants did not comment on these rates in the written submissions. According to the Return to Work Formula alluded to in the claim and the written submissions, there was agreement that the claimants would be paid wages in accordance with the Regulation of Wages (General) (Amendment) Order. I considered all the documents filed by the claimants and none of them states the rate of pay. The documents filed are time sheets showing hours worked but not reflecting payment made. The County Labour Officer’s report on the other hand lists the payments that were made before the Return to Work Formula was signed and after. Before the Return to Work Formula the payments were per day and after the payments were per month. There is therefore no evidence that the claimants were paid hourly as alleged or that they were underpaid. The prayer for underpayments is accordingly dismissed. ii. Overtime The claimant submitted that hey worked overtime but were not paid. It is submitted that they worked from 7 a.m. to 7 p.m. thus doing 4 hours overtime daily. The records filed by the claimants include time sheets in which all hours worked were recorded. The time sheets reflect both normal hours worked and overtime at 1.5 and double rates. This means that all overtime worked was recorded and paid for. There is therefore no evidence that the claimants were not paid overtime. The claim is accordingly dismissed. iii. Annual Leave The report of the County Labour Officer does not refer to any leave. The claimants have in both the claim and the submissions stated that they were not given any leave or compensated in lieu. Among the records filed there is no reflection of leave. I therefore find that the claimants were not given leave or paid in lieu. It is however not possible for the court to assess the leave entitlement as the claimants did not state the date of employment the last date worked and the last salary that are required to tabulate the same. The respondent is directed to work out the leave due to each of the claimants up to the month of April 2015 being the last full month for tabulation as the claim was filed on 5 th May 2015. Conclusion I conclusion, I find that the claimants have proved only the prayer for annual elave. The prayers for underpayments and overtime having not been proved are dismissed. DATED AND SIGNED AT NAIROBI ON THIS 6TH DAY OF JUNE 2018 MAUREEN ONYANGO JUDGE DATED AND DELIVERED AT KISUMU ON THIS 5TH DAY OF JULY 2018 MATHEWS NDERI NDUMA JUDGE

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