Miscellaneous Application 21 of 2017

July 9, 2017

Ruth Wambui Mwangi & another v Alfarah Wholesalers Limited [2017] eKLR REPUBLIC OF KENYA IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAKURU MISC.APPLICATION NO. 21 OF 2017 RUTH WAMBUI MWANGI AGNES NYAMBURA WANGAI (suing as the legal representatives of the estate of Joseph Wangai Muraya APPLICANTS v ALFARAH WHOLESALERS LIMITED RESPONDENT RULING NO. 3 1. For determination is a motion dated 4 December 2017 by the Respondent seeking a). … b). … c). There be a stay of execution of the orders of this court dated and issued on 31st July 2017 and 1st December 2017 plus all consequential processes and proceedings pending hearing and determination of an intended appeal to the Court of Appeal. d). There be further stay of execution of proceedings in this matter geared towards recovery of the amounts awarded in this matte pending hearing and determination of the Intended Appeal to the Court of Appeal. e). The sum of Kshs 900,000/- deposited in court pursuant to the orders of this court be availed as security and the same be placed in a fixed deposit account at KCB Bank Ltd Nakuru Branch in the Names of the Advocates for the Parties herein as security pending the hearing and determination of the Intended Appeal. f). Cost of this application be in the Intended Appeal. 2. When the application was placed before Court on 4 December 2017, the Court directed that it be served upon the applicants for hearing today. 3. The applicants filed a replying affidavit in opposition to the motion on 6 December 2017 and arguments were taken today. 4. The Court has given due consideration to the application, the replying affidavit and oral submissions tendered in Court and come to the conclusion that the stay in terms of order d) be granted on condition that the sum of Kshs 700,000/- out of the Kshs 900,000/- deposited into Court be released to the applicants. 5. The order for release is made on the consideration that the compensation as was assessed by the Director of Occupational Health and Safety is based on a no blame liability and the further consideration that the Respondents have not denied that the deceased on whose behalf the initial proceedings were brought was its employee who died after an accident in the course of employment. 6. Costs of the application in the Cause. Delivered, dated and signed in Nakuru on this 7th day of December 2017. Radido Stephen Judge Appearances For applicants Mr. Murimi instructed by Murimi, Ndumia, Mbago & Muchela Advocates For Respondent Mr. Odero instructed by Okong’o Wandago & Co. Advocates Court Assistant Nixon

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Cause 187 of 2014

November 15, 2014

John Kimutai Yego v Pyrethrum Board Of Kenya [2015] eKLR REPUBLIC OF KENYA IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAKURU CAUSE NO. 187 OF 2014 JOHN KIMUTAI YEGO………………………………… CLAIMANT V PYRETHRUM BOARD OF KENYA……………………RESPONDENT RULING John Kimutai Yego (Claimant) filed a Memorandum of Claim against the Pyrethrum Board of Kenya (Respondent) on 10 June 2014 alleging that the termination of his employment was unfair and seeking compensation, unpaid salaries, deductions wrongfully made from salaries, terminal dues, pay in lieu of notice and leave pay. Together with the Memorandum of Claim, the Claimant filed an application seeking injunctive relief, which relief were granted by Ongaya J on 10 June 2014 (the Claimant’s properties had been attached on account of rent arrears). On 18 June 2014, the Respondent filed a Notice of Preliminary Objection contending that the Cause was statute barred. When the Cause was mentioned on 19 June 2014, the Claimant sought for time to respond to the Preliminary Objection and the Court granted him time to respond. The Court directed that Preliminary Objection and the application for injunctive relief be heard together on 3 July 2014. On 3 July 2014, the Claimant sought and got leave to amend the Notice of Motion. On 17 July 2014, the Claimant filed an Amended Notice of Motion seeking restraining orders against the Respondent from selling his proclaimed/attached properties. When the Amended Motion and Preliminary Objection came up for hearing on 31 July 2014, the Court adjourned the hearing to 22 September 2014 but on this date the Claimant’s Advocate was reported ill and the proceedings were further adjourned to 14 October 2014. The Advocate was reported ill even on this latter day and the Court fixed the hearing on 17 November 2014. On 18 November 2014, the firm of Murimi, Ndumia, Mbago & Muchela Advocates filed an application seeking leave to withdraw from acting for the Respondent (this application was not prosecuted). After several other false starts, the Preliminary Objection proceeded to hearing on 19 March 2015. Mr. Murimi for the Respondent submitted that according to paragraph (d) of the Amended Statement of Claim, the Claimant pleaded that he was suspended in September 2008 and dismissed in May 2009. In the view of Mr. Murimi, the Claimant had until around 19 May 2012 to file his claim but the same was lodged in Court only on 10 June 2014, two years outside the three years permitted by section 90 of the Employment Act, 2007. Mr. Murimi referred the Court to the holding by this Court in Stephen Kamau Karanja & Ar v Family Bank Ltd (2014) eKLR. Mr. Njuguna who urged the Claimant’s case submitted that section 90 of the Employment Act, 2007 was not meant to aid a mischievous party against an innocent party. He further submitted that the Constitution protected the Claimant from the technicalities of the Statute (section 90 of the Employment Act, 2007). He finished off by submitting that the authority cited by the Respondent was distinguishable on the facts and circumstances. From the record, it is indisputable that the Claimant was dismissed from employment through a […]

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