[2015] KEELRC 1652 (KLR)

REPUBLIC OF KENYA

IN THE INDUSTRIAL COURT OF KENYA AT KISUMU

INDUSTRIAL CAUSE NO. 167 OF 2013

(Formerly Nairobi Cause No. 1369 of 2012)

(Before Hon. Lady Justice Maureen Onyango)

ALFRED KOGO ...................................................................................................... 1ST CLAIMANT

BENARD OKARI .................................................................................................... 2ND CLAIMANT

-Versus -

ELDOMATT SUPERMARKET LIMITED ................................................................ RESPONDENT

JUDGEMENT

The Claimants herein Benard Okari and Alfred Kogo filed suit against the Respondent|Eldomatt Wholesale seeking the following reliefs:

Benard Okari

Leave due

1. 21 days x 11 years x 10,559/26 Kshs. 93, 812

2. Overtime

10 hours x 6 = 60 hours - 45 = 15 hours OT per

week for 572 weeks - 8580 hours x 945/195 = Kshs.415,800

Total Claims Kshs.509,612

Alfred Kogo

1) Pay in lieu of notice Kshs.13,610

2) Leave due 21 days x 7 years = Kshs. 7,689

3) Service Benefits 15 days x 7 years x 11835. 3 Kshs.14,422

4) Overtime

45 hours per week

10 hours x 6 - 60 hours - 45 = 15 hours

15 hours per week x 4 weeks = 60 hours per month

60 hours x 1. 5 x 11835/195 Kshs.458,808

Total Kshs.521,529

The Respondent is a supermarket trading in both retail and wholesale trade in Eldoret, Uasin Gishu County. The Claimants allege that they were employees of the Respondent.

Benard Okari Alleges he was employed by the Respondent on 20th October, 2000 as a shop assistant at a monthly Salary of Shs.4,000. His employment was terminated on 11th April, 2012. At the time of termination his Salary was Shs,8,500 per month. He alleges the termination was unfair because he was not given an opportunity to defend himself against any wrongdoing tricking him to resign.

Alfred Kogo alleges that he was employed by the Respondent in April, 2005 as a turnboy at a salary of Shs.6,500 per month. He was later given the position of driver. He held that position until 25th May, 2012 when his employment was terminated. His last Salary was Shs.11,000 per month.

He alleges the termination of his employment was unfair because he was not given an opportunity to defend himself against the charges levelled against him.

Both Claimants reported their termination to the union who on 14th June wrote to the Respondent demanding terminal dues for the Claimants as tabulated in their respective demand letters. When the Respondent did not respond, they filed this claim.

The Respondent filed a statement of Defence on 26th March 2014 denying the particulars of the Claims by the Claimants and averred that the Claimants were paid all their terminal dues. The Respondent averred that the Claims not sufficiently verified, were incompetent, misconceived and incurably defective. The Respondent prayed that the Claims be dismissed with costs.

The Respondent also filed a witness statement of J. S. Shah, the director of the Respondent. Mr. Shah stated that Benard Okari worked with the Respondent from 2008 to April 2012. Mr. Shah states that Benard Okari took annual leave of 21 days and when he reported back he informed the Respondent that he was no longer interested in working for the Respondent and wanted to be paid his terminal dues. The Respondent paid his terminal dues made us as follows:-

1. 1 months pay in hieu of Notice Kshs. 9,000

2. Overtime from 2008 to 2012 Kshs.188,304

Total Kshs.197,304

Mr. Shah further stated that Alfred Kogo was voluntarily resigned from duty as a turn boy and was paid his full terminal dues as follows:-

1. 1 month Salary in lieu of notice Kshs. 12,500

2. Leave days for 2 years Kshs. 25,000

3. Severance pay for 4 years and Overtime Kshs.125,000

Total Kshs.165,500

Copies of letters of appointment and tabulation of payment signed by the Claimants were attached in the Respondents list of documents.

The case came up for hearing on 11th March, 2015 when Mr. Obwatinya counsel for the Claimants withdrew the claim of the 1st claimant. The 2nd Claimant's case was heard on that day and the case was adjourned to 22nd June, 2015 for hearing of defence case.

On 22nd June, 2015 Ms. Lusweti who was prosecuting the case on behalf of the Respondent informed the court that the Respondent will rely on its pleadings, statements and list of documents on record. Parties were then directed to file and exchange written submissions which they did subsequently.

2nd Claimant testified that he was employed as shop assistant and worked until 11th April, 2012 when his employment was terminated without notice. His last salary was Shs.8,500. He testified that he was terminated without being given a reason or opportunity to defend himself and was not paid terminal dies. He testified that he worked from 8. 15 am to 7. 30 pm with a 30 minutes lunch break for 6 days a week but was not paid overtime. He reported to the union when his employment was terminated and the Union Branch Secretary wrote a demand letter to the Respondent and also tabulated his terminal dues.

Under cross examination the Claimant stated that he was given compulsory leave and did not report back to work after the leave. He also admitted signing and affixing the thumb print to document tabulating his terminal dues in the Respondent's list of documents but denied receiving the payments. He also stated under cross examination that he was not involved in any disciplinary matter.

The Claimant called Josephat Amachika Ojok, the branch secretary of Kenya Union of Commercial Food and Allied Workers, Eldoret Branch who testified that the Claimant was a member of the Union. The claimant reported to him that he had been dismissed from employment. He wrote to the Respondent and tried to arbitrate the matter. He tabulated the Claimant's terminal dues at Shs.703,597 using General Order. He also tabulated service pay for 11 years at 15 days for each year worked, overtime and annual leave.

Under cross examination Ojuok stated that he relied on information given to him by the Claimant.

I have considered the pleadings, evidence adduced in court and the written submissions filed by both parties. Whether the Claimant was unfairly terminated and whether he is entitled to the remedies sought.

In his memorandum of Claim, Benard Okari prayed for only leave due for 11 years and overtime. These are therefore the only issues for determination.

Although the Respondent did not call any witness, the Claimant admitted signing and affixing his thumb print to the document titled ''Full and Final Settlement'' dated 30th November, 2011. He also stated under cross examination that he was sent on compulsory leave and never reported back to work.

In the Memorandum of Claim he states as follows:-

''I was mistreated not given any opportunity to defend myself against any wrongdoing levelled against me which continue for a long time forcing me to resign.''

It is not clear whether the Claimant resigned as stated in the memorandum of claim or he was terminated as stated in his testimony. The Claimant also admitted signing the discharge showing that he was paid Shs.197,304 on account of notice, leave and overtime but denied receiving payment.

From the foregoing it is not possible to tell the factual position of the Claimant's case. Claimant's testimony and his pleadings tell different stories. The upshot is that his Claim has not been proved and is dismissed.

There will be no orders for costs.

Dated, signed and delivered in open court this 17th day of the December, 2015

MAUREEN ONYANGO

JUDGE.

Representation

Court Assistant - Hassan Hamisi

Claimant: Obura - Obwatinya & Company Advocates

Respondent: Kitiwa & Company Advocates