Ogeyo v W.E. Tilley (Muthaiga) Ltd 2011 (Cause 393 of 2012) [2014] KEIC 99 (KLR) (Employment and Labour) (31 July 2014) (Judgment)

Ogeyo v W.E. Tilley (Muthaiga) Ltd 2011 (Cause 393 of 2012) [2014] KEIC 99 (KLR) (Employment and Labour) (31 July 2014) (Judgment) Charles Opati Ogeyo v W.E. Tilley (Muthaiga) Ltd 2011 [2014] eKLR Neutral citation: [2014] KEIC 99 (KLR) Republic of Kenya In the Industrial Court at Nairobi Employment and Labour Cause 393 of 2012 Nzioki wa Makau, J July 31, 2014 Between Charles Opati Ogeyo Claimant and W.E. Tilley (Muthaiga) Ltd 2011 Respondent Judgment 1.The Claimant filed his suit against the Respondent on 12th March2012 seeking reliefs against the Respondent in respect of work donefor the Respondent in Tanzania. He averred that he was employedby the Respondent on 1st May 2008 and posted to Tanzania toconstruct a new factory called Marmo E Granito Mines Ltd. Heaverred that he worked for some time in Tanzania and got injuredwhile at work and his immigration status became an issue as theRespondent failed to renew his work permit or pay his allowances.He averred that he was forced to write a resignation letter underduress on 8th December 2011. He thus claimed house allowance,hardship allowance, medical allowance, leave pay, severance pay at the rate of 2.5 months for each year worked, maximumcompensation and general damages of 10,560,000/- making a grandtotal of Kshs. 12,668,000/-. He sought declarations that the actionsof the Respondent in failing to process his work permit amounted tomodern day slavery and servitude in a foreign land, that the failureto give the Claimant terms and conditions of service was unlawfuland the Respondent be fined Kshs. 100,000/- and committal to civiljail for 2 years, that failure to issue a certificate of service wasunlawful and the Respondent be fined Kshs. 100,000/- andcommittal to civil jail for 6 (sic), costs of this Claim. 2.The Respondent filed a Response to the Claimant’s Claim on 7thAugust 2012. In the Response the Respondent averred that it was astranger to the averments in the Claim and denied the averments inthe Claim and put the Claimant to strict proof. It was averred thatthe Respondent is a limited liability company duly registered inKenya and all its operations are within the borders of Kenya. It wasaverred that there was no nexus between the Claimant andRespondent and that the Claimant should have researched wellbefore filing suit to establish who had employed him in Tanzania. 3.The Claimant testified before the Court on 27th May 2014. He statedthat he was hired by the Respondent on 1st May 2008 and at thetime he did not have a contract. He testified he was hired by Mr.Feroz. The salary was 40,000/- plus allowance for medical andhouse making a total of Kshs. 59,000/- per month. He stated thatafter a 2 day journey he arrived in Tanzania and was met by a Mr.Kanti and Mr. Salim who was the manager. He testified that themoney was to be paid to his account but he was asked to sendsomeone to collect and at times it would be his brother or his wife.He worked for 4 years and received food but no medical allowance.He testified that he worked in Mbeya, Tanzania and when heinsisted that he wanted to return home he was given fare to go upto Arusha and his brother sent him fare from Arusha to Nairobi. Hepleaded his case at immigration at the border and was allowed backhome. He expected his dues would be paid which included houseallowance, medical allowance of 2,000/- a month. The generaldamages he sought were for the suffering he went through. Hebegged to be allowed to come home as he was in a foreign country.He stated that he was told rent for Nairobi would be paid and thathe would be given a house allowance. In Tanzania since he was aforeigner they were to give him accommodation and food. Hetestified that he was surprised that they say he was not an employee of the Respondent. He said that they are the ones whohired him. He testified even the voucher had the name of theRespondent though he was in Tanzania. 4.In cross examination he testified that the voucher for payment wasfrom the Respondent and the account was for Marmo Granito MinesLtd. He maintained he was to work for the Respondent. He deniedlying to the immigration department when he took the permit. Hetestified that he was received in Tanzania by Salim a manager whois a brother to the manager here in Kenya. Salim was the managerof Marmo E Granito Ltd. He testified that he was hurt and taken toMbaliza Hospital Mbeya and the bill was paid for. The Respondentwas advised by phone from Tanzania and he was discharged whichshows money was sent from Nairobi. He testified it was from theRespondent. He stated that he complained a lot and whenchallenged to produce the evidence of the complaints he testifiedthat he complained orally. He denied that he was employed byMarmo Granito Limited. 5.In re-exam he testified that the Respondent asked him to get thepermit and used it to travel to Tanzania. He testified that thevoucher referred to W. E Tilley and the cheque referred to Tilley and that everything was sorted out on instructions fromKenya. 6.The Respondent called Tarsisio Maina Irungu who is the HumanResources Officer of the Respondent since 2003. He testified thatthe Respondent is a fish processor and exporter of fish. He testifiedthe operations of the Respondent do not extend to Tanzania. Hereferred to the Claimant’s voucher in the Claimant’s SupplementaryDocuments and stated that the voucher is from the Respondent onaccount of Marmo Granito Mines Ltd. It is a company in Tanzaniaand the directors are brothers to W. E. Tilley directors. He testifiedthere are other sister companies in Uganda and Tanzania and thatwhen one company pays for another company it is normallyaccounted for separately. The money can be settled against thedebts of the other company. He testified that the Claimant hasnever been an employee of the Respondent. He referred to the listof documents filed by the Respondent and stated that theClaimant’s name does not appear on the list of the Respondent’semployees. He testified that the cheque payment voucher was forMarmo E Granito Mines Ltd for Charles Opati salary up to December2011. 5 | Page 7.In cross examination he testified that the Articles and Memorandumof association do not go beyond what is licenced by Nairobi CityCounty. He testified that when they want to do another businessthey register another company and they had registered anothercompany in Tanzania and the directors are not the same. Hetestified there is an arrangement on payments but there is noarrangement on employees. He testified that the payments weremade on instruction from Marmo E Granito Mines Ltd but he did nothave the memo authorising the payment. He testified that each ofthe employees of the Respondent have contracts. He denied thatthe Claimant was an employee of the Respondent and that theClaimant knew the instructions to pay were from Tanzania. 8.Parties were to file submissions and as the time of writing thisJudgment only the Claimant had filed submissions. In hissubmissions filed on 12th June 2014, the Claimant submits that theissues for determination are1).Whether the Claimant was the Respondent’s employee2).Whether the resignation of the Claimant was constructivedismissal from employment3)Whether the Respondent followed the guidelines set out in theEmployment Act in so terminating the employment services of theClaimant4).Whether the reason(s) for termination of the Claimant’semployment were justified and whether the same were fair.5).What remedies are available to the Claimant 9.The Claimant submitted on foreign contracts of service under Part XIof the Employment Act and the Employment (Foreign Contracts ofService) Rules 1977. It was submitted that it as clear from theevidence that the Claimant was an employee of the Respondenteither directly or as an agent. The Claimant submitted that thetermination of his employment was against the dictates of the lawand the safeguards under Sections 41 and 43 of the EmploymentAct 2007 and the termination was unlawful under Section 45. Hethus sought a determination that the termination was unfair withinthe meaning of the law and he was therefore entitled tocompensation in terms of Section 49 of the Employment Act. Heclaimed leave as well as damages and for the damages sought herelied on the case of Kenya Airports Authority v Silas Obengele[2008] eKLR. Reliance was also placed on the case of SouthernHighlands Tobacco v Mc Queen (1960) EA 490 and Joseph Sitati Nato v Kenya Ports Authority [2010] eKLR. Hesubmitted that he had proved he was constructively dismissed andentitled to the prayers in his claim. 10.The Claimant’s case is that he was an employee of the Respondentand was constructively dismissed. He testified that he wasemployed on 1st May 2008 and posted to Tanzania to work at MarmoE Granito Mines Ltd in Mbeya, Tanzania. A foreign contract ofservice is subject to the provisions of Part XI of the Employment Act2007. Part XI provides as follows:-83.A foreign contract of service shall be in the prescribed form, signedby the parties thereto, and shall be attested by a labour officer.84. A foreign contract of service shall not be attested unless the labourofficer is satisfied―(a)that the consent of the employee to the contract has beenobtained;(b)of the absence of any fraud, coercion or undue influence, and anymistake of fact, or misrepresentation which might have induced theemployee to enter into the contract;c)that the contract is in the prescribed form;(d)that the terms and conditions of employment contained in thecontract comply with the provisions of this Act and have been understood by the employee;(e)that the employee is medically fit for the performance of his dutiesunder the contract; and(f)that the employee is not bound to serve under any other contract ofservice during the period provided in the foreign contract.85.(1)When the employer who enters into a foreign contract of servicedoes not reside or carry on business within Kenya, the employer shall,or where the employer resides in Kenya, the labour officer may requirethe employer to, give security by bond in the prescribed form, with oneor more sureties resident in Kenya and approved of by the labourofficer for the due performance of the contract in such sums as thelabour officer considers reasonable.(2)Where the employer has an authorised agent resident in Kenya, theMinister may require that the security bond specified in subsection (1)be given by the agent and the agent shall personally be bound by theterms of the bond notwithstanding the disclosure of his principal. 11.The Claimant has no contract of service and if indeed he was hiredto work in Tanzania then he ought to have obtained a contract interms of Section 83 and 84 of the Employment Act. It is apparentfrom the evidence adduced and the documentary evidenceavailable to Court that the Claimant worked for a company knownas Marmo E Granito Mines Ltd in Tanzania. The Respondent madepayments of salary to the Claimant and his dependents on some occasions and the documents show clearly the payments were onbehalf of the company in Tanzania. This was admitted by thewitness for the Respondent. The records show the Claimant was notan employee of the Respondent at the material times. He thus hasno valid claim against the Respondent who had what appears to bea hawala system of payments. 12.As to the issues framed. The answers are as follows. As to whetherthe Claimant was the Respondent’s employee, the answer is no. Asto whether the resignation of the Claimant was constructivedismissal from employment the answer is no. He resigned and therewas no constructive dismissal. As to whether the Respondentfollowed the guidelines set out in the Employment Act in soterminating the employment services of the Claimant, the answer isthat the Respondent did not terminate the services of the Claimant.As to whether the reason(s) for termination of the Claimant’semployment were justified and whether the same were fair, therewas no termination of employment and thus the issue does notarise. As to what remedies are available to the Claimant, there arenone.10 | Page 13.The upshot of the foregoing is that the suit against the Respondentis dismissed as it does not disclose any cause of action against theRespondent. The parties are each to bear their own costs.Orders accordingly. **DATED AND DELIVERED AT NAIROBI THIS 31ST DAY OF JULY 2014.****NZIOKA wa MAKAU****judge**