KENYA UNION OF EMPLOYEES OF VOLUNTARY AND CHARITABLE ORGANIZATIONS V SUDAN CATHOLIC BISHOPS REGIONAL CONFERENCE [2013] KEELRC 482 (KLR)

REPUBLIC OF KENYA

Industrial Court of Kenya

Cause 786 of 2010

KENYA UNION OF EMPLOYEES OF VOLUNTARY AND

CHARITABLE ORGANIZATIONS …………………………..…………………….. CLAIMANT

SUDAN CATHOLIC BISHOPS REGIONAL CONFERENCE………………….RESPONDENT

The Claimant herein Kenya Union of Employees of Voluntary and Charitable Organizations has filed a dispute against the Respondent Sudan Catholic Bishops Conference claiming intimidation and wrongful termination of Mr. Anthony Omarana Esile. 

The Respondent did not file any reply and never appeared in Court either for mention or hearing in spite of service having been effected by the Claimant and affidavits of service filed in Court.

The Claimant alleges in the Memorandum of Claim that the Respondent employed the Grievant for the first time by contract dated 10^th August 2006 as a driver/mechanic. The contract term was 105 days effective from 11^th August 2006 to 11^th December 2006. The contract was subject to the laws of Kenya. Upon expiry of the 1^st contract the Grievant signed another contract for 12 months from 3^rd January 2007 to 2^nd January 2008. The 2^nd contract was subject to terms and conditions of service contained in the Caritas Yei (SCBRC) Human Resource Manual (as amended from time to time), the Employment Act and other applicable provisions of the laws of Sudan. His work station as per the contract was Catholic Diocese of Yei and he was accountable to the Director, Caritas Yei.

The contract expired on 2^nd January 2008 but the Grievant continued to work until 7^th March 2008 when he received a letter of termination of contract. He was offered 1 months’ salary and USD 100 for transport back to Kenya. The Claimant prays for orders as follows:-

(a)      THAT, the Honourable Court finds that, the accusations (a), (b), (c) and (d) leveled against the Grievant in APPENDIC “E” be DECLARED INVALID, NUL AND VOID and find that the Grievant had suffered AN UNFAIR AND A WRONGFUL SERVICE TERMINATION.

(b)      THAT, the Honourable Court order the Respondent to pay the Grievant all terminal dues in USD as follows:-

i.           Salary for February and 7 days worked in March, 2008

ii.          52.5 days Annual and prorated leave earned

iii.         Work permit renewal personal expenses                    -           USD. 62.00

iv.         Adequate cost for travelling back to Kenya, USD 150       

             less USD 100 paid on departure – balance claimed -         USD. 50.00

v.          One (1) month salary in lieu of notice at USD

            286 per month.                                                                   -           USD286.00

            rate of USD 286 per month USD                                     -      USD.3,432.00

                                                GRAND TOTAL:-                  -     USD.4,682.00

The case came up for hearing on 27^th November 2012 when the Claimant was represented by Odin Boaz Otieno Janitor, the Secretary General of the Claimant Union and there was no appearance by the Respondent. Mr. Otieno relied entirely on his Memorandum of Claim and Appendices filed with the same. 

From the particulars contained in the Memorandum of Claim and the Appendices, it is clear that the 1^st contract was entered into in Kenya and subject to Kenyan law but to be performed partly in Kenya and partly in the Sudan. When this contract expired, the Grievant was offered a second contract which was signed and performed in entirety in the Sudan. The contract expressly provides that it is subject to the laws of Sudan.

This Court has no jurisdiction to hear and determine cases which are entered into in Sudan and subject to the laws of Sudan. The case is therefore dismissed for want of jurisdiction. 

Orders accordingly.

Read in an open Court and signed on this 19^th day of February 2013.

In the presence of:            _____________________________________ Claimant