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Muhoroni Sugar Company receiver managers in hiding after arrest warrant issued

KISUMU, Kenya, May 20 – Muhoroni Sugar Company receiver managers are said to have gone into hiding after the Employment and Labour Relations court in Kisumu ordered their arrest.

This followed a ruling by Justice Stephen Radido in a protracted legal battle over the petition NO. 25 of 2021 in the matter of controversial right to fair labor relations, fair administrative action and the right against inhuman and degrading treatment.

Nashon Oliech Osieko, Raphael Muyonga, Rachel Makaya and Imelda Nubia (petitioners) lodged the petition before Justice Radido on April 9, 2021 alleging that Francis Ooko, Harun and the respondent Muhoroni sugar company (under receivership) had violated their constitutional rights and were in breach of contract.

They urged the court to declare that the 1st and 2nd respondent (Ooko and Kirui) to respond on the action of keeping the petitioners labour petition in endless limbo and the refusal to remit the salaries without any written reason for doing so is a contravention to the petitioners on fair labour relations, administrative action and right against inhuman and degrading treatment for which damages should be awarded.

The petitioners also requested the court to issue an injunction compelling the 1st and 2nd respondents to reinstate the petitioners back to their jobs and provide them with all required administrative and financial assistance, support and protection to ensure they are able to conduct their duties without interruptions.

Justice Radido pointed out that on June 14, 2021, the court allowed the respondents to file and serve their responses to the petition within the set timelines.

The court also granted petitioners leave to file and serve a further affidavit and submissions within the timeline. 

As a result of several arguments before court and seeking to have the first and second respondents strike out the names of 1st and 2nd respondents, Justice Radido said the court would strike out the motion seeking to have the suit against 1st and 2nd respondents dismissed because the firm of advocates filed a case but did not request a notice of change of advocates or a notice of appointing advocates to be on the records.

First, the petitioners on their part argued that they were still the employees of the respondents, yet the latter failed to pay their remuneration without any reasons and thus violating their rights of fair administration actions.

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Secondly, the petitioner contented that the petition failed to ensure their safety and thus infringed on their right to fair labour practices. In regard to the 4th (Rachel Muyonga) it was argued that despite her contract having expired on December 31, 2019, the respondent kept her in continued employment and had even paid her May salary and that in any case, her fixed term contract was illegal.

On breach of contract justice Radido stated that although the petitioners clothed a dispute as a constitution petition in the courts, it could have easily resulted as one on breach of contract.

On payment of wages, the respondents admitted that 1st to 3rd petitioners were still employees but due to reasons beyond their control, they could not fulfill the contractual obligations of paying remunerations.

These petitioners could not report to work due to hostility from other employees declared Justice Radido adding that it was not their mistake for not fulfilling their contractual obligations.

“Therefore, it is not correct that the 1st to 3rd petitioners absented themselves from work without lawful cause to warrant withholding their remunerations,” stated the judge.

He stated that the respondent attempt to explain the steps they have taken to ensure security of the petitioners at work while frustration of contract was also not suggested.

“Under the common law, the general rule is that there is no obligation for the employer to provide work during the contractual relationship. The obligation is to pay wages,” the judge explained.

The court, therefore, finds that in failure to pay the petitioners their revenue ration, the respondents were in breach of contract, declared Radido.

From the foregoing the court makes the following findings; the 1st to 3rd petitioners are still bona fide employees of the respondent (Muhoroni Sugar Company).

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The court found that the respondent has been in breach of contract by not paying the 1st to 3rd petitioner their remuneration while the 4th petitioner’s contract expired by December 31, 2019.

Subsequently, the court ordered the respondent to pay 1st to 3rd petitioners all accumulated remuneration while the case of the 4th petitioner was dismissed with no order on costs.

 The judge concluded that since there is subsisting contraction relationships between the successful petitioners and respondents, the court orders each party to bear their own costs of the judgement delivered in Kisumu.

Although the respondent had applied for a stay of execution of the judgement and order issued on December 1, 2021 pending the hearing and determination of the intended appeal, the application was dismissed with cost by Justice Radido on March 23, 2022.

On May 17, 2022 the Department of Registrar Employment and Labour Relations court in Kisumu in a notice before Justice Beryl Omollo the respondents; Francis Ooko (1st ), Harun Kirui (2nd) and Muhoroni Sugar Co. Ltd (In Receivership) (3rd ) were directed to appear for hearing of the case  on April 6,  2022 and upon hearing of submission by counsels from both sides the judge declared “this honourable court hereby issue warrant of arrest for Francis Ooko and Harun Kirui with the case set for hearing on June 15, 2022.

 Subsequently, the Officer Commanding Police Division (OCPD) Koru police station was vide the warrant of arrest ordered to execute it by May 18, 2022.

He was commanded to arrest Ooko and Kirui unless they paid to court all the accrued salary arrears and placed the decree holders back to their offices.

The court also ordered the OCPD to return the warrant as soon as practicable or executed it by ensuring all the salary arrears is paid with an endorsement certifying the day and manner in which it was done.

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