1.By a Notice of Motion Application dated 24th May, 2022, the Claimant/Applicant seeks orders that;i.Spent.ii.An order do issue to compel the respondent herein to pay the terminal benefits of the grievant so that he may obtain urgent medical treatment he requires following the complication he had developed due to motorcycle two (2) accidents he was involved in.iii.The costs of this application be provided for.
2.The Application filed under certificate of urgency is expressed under Article 22(2) and 47(1) and (2) of the Constitution of Kenya 2010, section 73(1) of the Labour Relations Act, 2007, Section 87 of the Employment Act, 2007, Section 12(3) of the Employment and Labour Relations Court Act, 2011, Cap 234B, 2014, Rule 17 and 28 (2) (a) of the Employment and Labour Relations Court (Procedure) Rules, 2016 and other enabling provisions of law.
3.The Application is based on the grounds therein outlined and is supported by the Supporting Affidavit of Fenus Okonji, the Secretary General of the Applicant Union who depones that;i.The respondent underpaid the grievant throughout his employment as a building caretaker and did not respond to a demand letter dated 2nd August, 2019 which demanded salary underpayment, service and annual leave.ii.The affidavit states that the Ministry of Labour accepted the dispute and appointed one Phylis Iminza as conciliator but the respondent did not honour her invitation and as a consequence, the conciliator issued a certificate of unresolved dispute paving way for the current suit.
4.On 26th May, 2022, the suit came before Ndolo J. who certified the same as urgent, directed service upon the respondent and fixed a date for inter partes hearing before any judge.
5.There is no affidavit of service on record.
6.However, on 2nd June, 2022, counsel for the respondent, Mr. Wamwayi applied for 14 days to respond to the Application and was accorded 14 days.
7.The claimant was also accorded 14 days for a response, if necessary, and mention was slated for 6th July, 2022 on which date the respondent’s counsel was absent and a ruling date was scheduled for 26th September, 2022.
8.By the 5th of August, 2022 when the court retired to write this Ruling, none of the parties had filed submissions.
9.The only issue for determination is whether the Application herein is merited.
10.According to the Statement of claim dated 24th May, 2022, the grievant, Mr. Mathew K. Sejero was employed by the respondent on 5th January, 2001 as a caretaker of Residential Flat House No. M44 located at Dandora Phase V at Kshs.5,000/= per month, which later rose to Kshs.7,000/= per month in 2014 and to Kshs.8,000/= by the date of termination. He avers that he was a diligent employee until the respondent unfairly terminated his employment on 3rd May, 2019.
11.The claimant prays for salary underpayment, annual leave for 4 years, service pay for 19 years and compensation for unlawful termination; a total of Kshs.2,868,826.80.
12.Noteworthy, this suit has neither been certified ready for hearing nor as undefended.
13.Finally and needless to emphasize, none of the provisions relied upon by the Applicant/Claimant nor the authorities attached confer upon the Applicant/Claimant authority to apply for summary judgement in the manner it has done in the instant case.
14.Perhaps the best the Applicant/Claimant could do is to seek a mention date before the Deputy Registrar for the requisite pre-trial directions and thereafter apply for the suit to be certified as undefended if the respondent will not have complied with the pre-trial directions or such other orders as the Deputy Registrar may issue. The suit may thereafter be scheduled for formal proof.
15.For the foregoing reasons, the Notice of Motion Application dated 24th May, 2022 is unmerited and is accordingly dismissed with no orders as to costs.