[2015] KEELRC 1197 (KLR)
The court found that the claimant's employment was not governed by a written contract as required by law, and the respondent failed to appear or challenge the claim. The evidence presented by the claimant was accepted on a balance of probability. The court held that the termination was unlawful and unfair, as the...
Source-derived case information.
- Citation
- [2015] KEELRC 1197 (KLR)
- Parties
- Claimant: Alexander Oichoe Akara; Respondent: Afrolique Kenya Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 153 of 2014
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- claim allowed
- Judges
- HS Wasilwa
- Legal Topics
- Unlawful Termination, Summary Dismissal, Service Pay, Notice Pay, Employment Contracts, Compensation for Dismissal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Alexander Oichoe Akara
Claimant
Afrolique Kenya Limited
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the claimant's termination was unlawful and unfair.
- 2 Whether the claimant is entitled to terminal dues, service pay, and compensation for unfair dismissal.
- 3 Whether the respondent failed to provide a written contract as required by law.
Ratio Decidendi
The court found that the claimant's employment was not governed by a written contract as required by law, and the respondent failed to appear or challenge the claim. The evidence presented by the claimant was accepted on a balance of probability. The court held that the termination was unlawful and unfair, as the claimant had permission to attend his son's graduation and was dismissed without due process or payment of terminal dues. The court awarded the claimant notice pay, unpaid salary, half salary for January 2012, service pay for six years, and compensation for unfair termination, less statutory deductions. The respondent was also ordered to issue a certificate of service and pay the...
Court Disposition
claim allowed
Orders
- The claimant's termination is declared unlawful and unfair.
- The respondent shall pay the claimant one month salary in lieu of notice (Kshs. 20,000).
Full Case Text
Judgment text and source record
43 paragraphs
REPUBLIC OF KENYA
EMPLOYMENT AND LABOUR RELATIONS COURT ATNAIROBI
CAUSE NO. 153 OF 2014
(Before Hon. Justice Hellen S. Wasilwa on 7th April, 2015)
ALEXANDER OICHOE AKARA…………………………………………..CLAIMANT
VERSUS
AFROLIQUE KENYA LIMITED ………….………………………..…RESPONDENT
JUDGMENT
Introduction
1. The Claimant herein Alexander Oichoe Akara filed his Memorandum of Claim in person on 11/2/2014. The Respondents were served with summons and a copy of the said Memorandum on 13/3/2014 as per the return of service filed in court on 8/7/2014. They did not enter any appearance or file any defence.
The case was then fixed for Formal Proof and the hearing was done on 4/2/2015.
Claimant’s case
2. The Claimant’s case is that he is a driver. He used to work for the Respondent from July 2005. There was no formal written appointment letter. His salary was Kshs.20,000/= per month.
On 20th November 2011, the Respondent sacked the Claimant. The Claimant avers that on this day, he went for his son’s graduation in town and when he went back to work, the Respondent chased him away. He was orally terminated. He later came back and asked the Respondent for his terminal dues but the Respondent declined to pay him.
It is the Claimant’s case that the termination was unlawful as he had permission to go for the graduation. He was not paid his November 2011 salary.
The Claimant further avers that in January 2011, the Respondent returned him to work but resorted to paying him ½ salary i.e. 10,000/=. They disagreed over this salary and the Respondent chased him away in February 2011. The Claimant went away and sought help from Kituo Cha Sheria and was assisted and advised on how to file this case.
His claim is for payment of his terminal dues and service pay.
Issues for determination
3. Upon hearing the Claimant herein I find his claim unchallenged by the Respondents who were served. He exhibited Appendix 1 being his drivers pass showing he was a driver and the pass allowed him to drive one Bang Baburam. He was not issued with any other employment letter detailing his terms and conditions of engagement which is contrary to Section 9(1) and (2) of the Employment Act which states that:-
(1)A contract of service:-
(a)for a period or a number of working days which amount in the aggregate to the equivalent, of three months or more; or
(b)which provides for the performance of any specified work which could not reasonably be expected to be completed within a period or a number of working days amounting in the aggregate to the equivalent of three months, shall be in writing.
(2)An employer who is a party to a written contract of service shall be responsible for causing the contract to be drawn up stating particulars of employment and that the contract is consented to by the employee in accordance with subsection (3).
Further Section 10(7) envisages a situation where there is legal proceedings and no employment contract is produced. The burden of proving or disproving an alleged term of employment stipulated in the contract shall be on the employer.
In the absence of the Respondent’s evidence, the court relies wholly on evidence adduced by the Claimant which I find established on a balance of probability. I find for Claimant and I award him as follows:
(1)I declare his termination unlawful and unfair.
(2)I award him 1 month salary in lieu of notice = Kshs.20,000/=.
(3)Payment for November 2011 salary = Kshs.20,000/=.
(4)½ salary for month of January 2012 = Kshs.10,000/=.
(5)Service Pay equivalent to 1 month salary for each
year worked being 6 years = 20,000 x 6 = 120,000/=.
(6)12 months salary as compensation for
unlawful termination = 20,000 x 12 = 240,000/=.
TOTAL Awarded = Kshs.410,000/=
Less statutory deductions
(7)He shall be issued with a Certificate of Service.
(8)The Respondent to pay costs of this suit.
Dated and delivered in open court this 7th day of April, 2015.
HON. LADY JUSTICE HELLEN WASILWA
JUDGE
In the presence of:
Claimant – present
No appearance for Respondent