[2018] KEELRC 709 (KLR)
The court found that the claimant was summarily dismissed without lawful cause or adherence to fair procedure as required by the Employment Act, 2007. The respondent failed to rebut the claimant's evidence or justify the dismissal. The claimant had served faithfully for three years and was not paid terminal...
Source-derived case information.
- Citation
- [2018] KEELRC 709 (KLR)
- Parties
- Claimant: Alphonce Kyalo Muli; Respondent: Allpack Industries Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 2521 of 2012
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- Judgment for the claimant.
- Judges
- MN Nduma, DO Ogal
- Legal Topics
- Unfair Termination, Summary Dismissal, Terminal Benefits, Underpayment of Wages
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Alphonce Kyalo Muli
Claimant
Allpack Industries Limited
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the claimant was unfairly and unlawfully terminated from employment.
- 2 Whether the claimant is entitled to compensation and terminal benefits as claimed.
- 3 Whether the respondent complied with the statutory procedure for dismissal.
Ratio Decidendi
The court found that the claimant was summarily dismissed without lawful cause or adherence to fair procedure as required by the Employment Act, 2007. The respondent failed to rebut the claimant's evidence or justify the dismissal. The claimant had served faithfully for three years and was not paid terminal benefits. The court held that the dismissal was unfair and unlawful, entitling the claimant to compensation equivalent to five months' salary, payment in lieu of notice, leave, rest days, and public holidays worked. The total award was Kshs.188,790, with interest and costs to the claimant.
Court Disposition
Judgment for the claimant.
Orders
- The respondent shall pay the claimant Kshs.188,790 as compensation and terminal benefits.
- The award is payable with interest at court rates from date of filing suit for notice pay, leave, rest days, and public holidays, and from date of judgment for compensation.
Full Case Text
Judgment text and source record
39 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI
CAUSE NO. 2521 OF 2012
(Before Hon. Justice Mathews N. Nduma)
ALPHONCE KYALO MULI.....................................................CLAIMANT
VERSUS
ALLPACK INDUSTRIES LIMITED...................................RESPONDENT
J U D G M E N T
1. The suit was brought by way of a Memorandum of Claim on 18th December, 2012 seeking compensation for unfair and unlawful termination of employment and payment of terminal benefits set out in paragraphs 12 to 16 of the Memorandum of Claim.
2. The Respondent filed a Memorandum of Reply on 11th September, 2013 in which the particulars of employment of the Claimant are admitted but denies the reliefs sought by the Claimant.
3. The Claimant testified under oath but the Respondent did not adduce any evidence in rebuttal of the Claim.
Facts of the Claim
4. The Claimant was employed by the Respondent as a general labourer on 3rd February, 2009 at a monthly salary of Kshs.5,655. The Claimant states that his salary was not reviewed in terms of Regulation of Wages Amendment Order 1 for years 2007 to 2012 thus he was underpaid and seeks payment of the underpayments set out in the Memorandum of Claim.
5. That on 18th January, 2012 the Claimant was summarily dismissed by the Respondent verbally and was not given any explanation or the reason for the dismissal.
6. The Claimant states that the action by the Human Resource Manager was callous, inhumane, unfair and amounted to unfair labour practice. The Claimant seeks maximum compensation equivalent to 12 months’ salary for the unlawful dismissal. The Claimant prays for payment in lieu of notice; payment in lieu of annual leave not taken for three years; payment in respect of rest days not given and not paid every week and payment in respect of public holidays worked without payment of double salary in terms of the law. The figures are set out in the Memorandum of Claim.
7. The Respondent failed to offer any evidence in rebuttal after the Claimant testified in Chief and was cross examined by Mr. Wanda for the Respondent.
8. The court finds that the Claimant has proved that he is owed by the Respondent all the terminal benefits set out in the Memorandum of Claim. The Claims have been proved on a balance of probabilities vide the uncontroverted evidence by the Claimant. The court awards the Claimant as prayed.
Compensation
9. With respect to the prayer for a declaration that the summary dismissal of the Claimant was unlawful and unfair. The Claimant has also discharged the onus placed on his by section 47(5) of the Employment Act, 2007 to show that the Summary Dismissal was without lawful cause and the Respondent did not follow a fair procedure in dismissing the Claimant from employment. The action by the Respondent violated sections 41, 43 and 45 of the Employment Act, 2007 and the Claimant is entitled to compensation in terms of sections 49(1)(c) as read with 49(4) of the Act.
10. In this regard, the Claimant had faithfully served the Respondent for 3 years. He intended to continue working, was not paid terminal benefits upon termination. He suffered loss and damages upon being dismissed without notice and without being heard. The court awards the Claimant five months’ salary in compensation for the dismissal in the sum of Kshs.(16,965 x 5) Kshs.84,825.
11. Judgment is entered in favour of the Claimant as against the Respondent as follows:-
a) Compensation Kshs.84,825.
b) Notice Pay Kshs.16,965.
c) In lieu of leave Kshs.16,965.
d) For untaken Rest Days Kshs.58,290
e) For unpaid Public Holidays Kshs.11,745
Total Award Kshs.188,790
f) The award is payable with interest at court rates from date of filing suit in respect of (b) – (e) above and from date of judgment in respect of (a) above.
g) Respondent to pay costs of the suit.
Judgment Dated and Signed in Kisumu this 25th day of October, 2018
Mathews N. Nduma
Judge
Delivered and signed in Nairobi this 2nd day of November, 2018
Maureen Onyango
Judge
Appearances
Erick Ntabo & Co. Advocates for Claimant
Soita & Saende for Respondent
Daniel Ngumbi – Court Clerk