Samuel Kipngetich Korir & 6 others v Jiangixi Zhognmei Engineering Construction Company Limited [2018] KEELRC 2019 (KLR)

The claimants seek payment of the following from the respondents:1st claimant – Samuel Kipngetich Korir Underpayment 401,600/= Lost hours/overtime 315,000/= House allowance 94,500/= NSSF & NHIF Funds 7,800/= PAYE 13,484/= Annual leave 42,000/= Total 874,384/= 2nd claimant – Guleth Bule Hassan Underpayment 709,600/= Lost hours/overtime 609,000/= House allowance 182,700/= NSSF & NHIF Funds 15,080/= PAYE 13,484/= Annual leave 84,000/= Total 1,613,864/= 3rd claimant – Victor Githimomi Underpayment 709,600/= Lost hours/overtime 609,000/= House allowance 182,700/= NSSF & NHIF Ffunds 15,080/= Annual leave Total 84,000/= 1,613,864/= 4th claimant – Edwin Kiprotich Chumo Underpayment 470,400/= Lost hours/overtime 378,000/= House allowance 113,400/= NSSF & NHIF Funds 9,360/= PAYE 6,233/= Annual leave 42,000/= Total 1,019.393/=

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5th claimant – David K. Burusei Underpayment 518,400/= Lost hours/overtime 399,000/= House allowance 119,700/= NSSF & NHIF Funds 9,880/= PAYE 6,457/= Annual leave 42,000/= Total 1,095,437/= 6th claimant – Eliud Galenywa Mwanzi Underpayment 633,600/= Lost hours/overtime 462,000/= House allowance 138,600/= NSSF & NHIF Funds 11,440 Annual leave 42,000/= Total 1,287,640/= 7th claimant – Joshua Barasa Karani Underpayment 345,000/= Lost hours 315,000/= House allowance 81,900/= NSSF & NHIF Funds 6,760/= Annual leave 42,000/= Total 770,660/= The respondent did not file any response to the claim. On 23rd May 2016 I referred the claim to the County Labour Office, Trans Nzoia County to investigate and prepare a report to assist the court in determination of the claim. The report of the County Labour Office was filed in court on 5 th October 2016 in which he made the following findings:Samuel Kipngetich Korir Samuel K. Korir was employed in July 2013 as a tipper driver earning Kshs.600 per day until 11/07/2015 when he terminated his employment with the company. On termination he was paid the following terminal dues which he received and confirmed that he had no further claim against his former employer. The dues were:Salary 26,259/= Service gratuity 20,972/= Accrued leave 19,474/= Total 66,705/=

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Hours of work In my investigation, I found out that Mr. Samuel K. Korir used to work hours over and above the normal daily working hours and these were recorded in the job cards and paid as overtime therefore the issue of lost hours does not arise. House allowance All employees including Samuel K. Korir were entitled to house allowance at the rate of 20% of basic pay. The company paid Kshs.1,000/= per month to cater for house allowance, however, according to Building and Construction Industry Wages order legal notice No. 20 of 1 st February, 2013, the employee who is not housed by the employer is entitled to house allowance at the rate of 20% of basic pay therefore 20% of 19475 is 3894/80 less 1000=2894/80 x 12 = 34,737.60/=. Therefore Samuel Korir is owed Kshs.34,737.60 only as house allowance arrears. Edwin Chumo Edwin Chumo was employed as a tipper driver in September 2013 earning Kshs.600/= per day, thereafter in September, 2014 the salary was adjusted to Kshs.19,474.00 there the issue of underpayment of wages does not arise however, the company paid Mr. Chumo Kshs.1,000/= per month as house allowance instead of 3894/80 which resulted into underpayment of house allowance. Therefore for 12 months Mr. Chumo is owed by the company Kshs.2,894 x 12 months=34,737/60 only. David K. Barusei Mr. David K. Barusei was employed by the company as a tipper driver earning Kshs.600/= per day which was thereafter adjusted to Kshs.19,600/= per month. He left employment in November, 2015 and was paid his terminal dues in full and final settlement as follows;Wages for days worked 5,131/= Service gratuity 20,792/= Accrued leave 16,852/= Total dues 42,775/= He received Kshs.42,800/=. During the employment period David K. Barusei was paid Kshs.1,000/= per month as house allowance instead of 3,920/80 which resulted in underpayment of house allowance therefore Mr. Barusei is owed by the company Kshs.2,920 x 12 months = 35,040/= only. The remaining four employees namely:1. Victor Githiomi Charles 2. Hassan B. Guleth 3. Joshua Barasa Karani 4. Eliud Mwanzi are still in employment and therefore the matter can be handled at the company level. Finally, the issue of underpayment can be said to have been resolved in that in September, 2014 the company adjusted wages for all workers including the claimants as per the Building and Construction Industry Wages Order Legal Notice No. 20 (see attached copy). I directed counsel for the claimant Ms Situma and Company Advocates to file written submissions in response to the County Labour Officer’s report which were filed on 19th May 2017. It is submitted that the claimants were underpaid in contravention of the Regulations of Wages (General) Order 2013 as they were paid Kshs. 50/=, 60/= and 65/= during the period they worked instead of Kshs.175/= per hour worked. It is further submitted that the claimants worked for 12 hours daily from Monday to Sunday from 7 a.m. to 7 p.m. but were paid for 8 hours only thus each of them is entitled to overtime of 4 hours a day, the claimants further submit that they were not given or paid in lieu of annual leave and are entitled to payment for the same.

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The claimants however abandoned their prayers for NSSF, NHIF and PAYE. Their final claims are therefore as follows:1st claimant – Samuel Kipngetich Korir Underpayment 401,600/= Lost hours/overtime 315,000/= Annual leave 42,000/= Total 758,600/= 2nd claimant – Guleth Bule Hassan Underpayment 709,600/= Lost hours/overtime 609,000/= Annual leave 84,000/= Total 1,402,600/= 3rd claimant – Victor Githimomi Underpayment 709,600/= Lost hours/overtime 609,000/= Annual leave 84,000/= Total 1,402,600/= 4th claimant – Edwin Kiprotich Chumo Underpayment 470,400/= Lost hours/overtime 378,000/= Annual leave 42,000/= Total 890,400/= 5th claimant – David K. Burusei Underpayment 518,400/= Lost hours/overtime 399,000/= Annual leave 42,000/= Total 959,400/= 6th claimant – Eliud Galenywa Mwanzi Underpayment 633,600/= Lost hours/overtime 462,000/= Annual leave 42,000/= Total 1,137,600/= 7th claimant – Joshua Barasa Karani

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Underpayment 345,000/= Lost hours/overtime 315,000/= Annual leave Total 42,000/= 702,000/= Determination I have considered the claims herein. The claim is limited to the terminal dues payable to the claimants only. The issue for determination is therefore whether each of the claimants is entitled to underpayments, lost hours/overtime and annual leave. I have noted that in the written submissions no attempt was made to address the findings in the report of the Labour Officer. The claimants did not deny that they were paid as stated in the report of the County Labour Officer for Korir, Chumo and Barusei nor did they deny that the other 4 claimants being Githiomi, Guleth, Karani and Mwanzi were still in employment at the time of filing suit and even at the time of preparation of the County Labour Officer’s report on 6th September 2016. For these reasons I will consider the report to represent the factual position. An extract of payroll for the claimants is attached to the report of the County Labour Officer which reflects that all the claimants were Tipper drivers paid at a monthly basic salary of 19,474 as at September 2014. They were also paid house allowance, normal overtime, holidays and rest days. From the foregoing, I confirm the findings of the County Labour Officer. I however note that apart from Korir (1 st claimant) and Barusei (5th claimant) no mention is made about payment of annual leave. Annual leave is a right of all employees. All employees are therefore entitled to annual leave or pay in lieu thereof, whether still in employment or not. Conclusion Based on the foregoing I enter judgment as follows:Samuel Kipngetich Korir There is no proof of the claims in respect of underpayments, lost hours and overtime. On annual leave, he is entitled to annual leave for 15 months being 26.25 days. At a salary of Kshs.26,859 he is entitled to Kshs.22,976.70. Having been paid Kshs.19,705, he is entitled to the balance of Kshs.3,502.70/= which I award him. Guleth Bule Hassan The prayer for underpayment has not been proved and is dismissed. The prayer for lost hours/overtime is also not proved and is dismissed. His claim for annual leave is allowed for the period of 29 months in the sum of Kshs.35,985.40/= which I award him. Victor Githiomi The claims for underpayments, lost hours and overtime are dismissed for want of proof. The claim for annual leave is allowed. I award the claimant Kshs.35,985.40/= for 29 months served. Edwin Kiprotich Chumo The prayers for underpayments, lost hours and overtime are dismissed. The prayer for annual leave is granted for 18 months at Kshs.22,335.75. This will be in addition to Kshs.34,737.60 found to be due to him on account of house allowance by the County Labour Officer making a total of Kshs.57,073.40. I therefore award him Kshs.57,073.40/=. David Barusei The claim for underpayment, lost hours and overtime are dismissed as not having been proved. The prayer for annual leave is granted for a period of 19 months at Kshs.23,576.50 less the sum of Kshs.16,852 paid. He is therefore entitled to Kshs.6,724.50/=. Eliud Gulenywa Mwanza The claims for underpayments, lost hours and overtime are dismissed. The prayer for annual leave is granted for 22 months at Kshs.21,865/=. Joshua Barasa

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The claim for underpayments, lost hours and overtime are dismissed for want of proof. The prayer for annual leave is granted for 13 months at Kshs.16,131.30/=. The respondent shall pay claimant’s costs on the lower scale on the basis that it is an undefended claim. DATED AND SIGNED THIS 14TH DAY OF MARCH 2018 MAUREEN ONYANGO JUDGE DATED AND DELIVERED AT ON THIS 10TH DAY OF MAY 2018 MATHEWS NDERI NDUMA JUDGE

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