[2019] KEELRC 2484 (KLR)
The court found that the claimant's dismissal was both unlawful and unfair as the respondent failed to provide notice, a hearing, or any evidence to justify the summary dismissal. The claimant's testimony was uncontroverted, and the respondent did not comply with statutory requirements under the Employment Act. The...
Source-derived case information.
- Citation
- [2019] KEELRC 2484 (KLR)
- Parties
- Claimant: Benson Makau; Respondent: Ocean Sole Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 1750 of 2013
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- Judgment for the claimant.
- Judges
- MN Nduma, DO Ogal
- Legal Topics
- Unfair Dismissal, Summary Dismissal, Compensation for Termination, Underpayment of Wages
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Benson Makau
Claimant
Ocean Sole Limited
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the claimant was unfairly and unlawfully dismissed from employment.
- 2 Whether the claimant is entitled to compensation for unfair dismissal.
- 3 Whether the claimant is entitled to salary in lieu of notice, leave days not taken, and underpaid salary.
Ratio Decidendi
The court found that the claimant's dismissal was both unlawful and unfair as the respondent failed to provide notice, a hearing, or any evidence to justify the summary dismissal. The claimant's testimony was uncontroverted, and the respondent did not comply with statutory requirements under the Employment Act. The court held that the claimant was entitled to compensation for unfair dismissal, salary in lieu of notice, and underpaid wages, as well as interest and costs. The award was based on the claimant's length of service, the absence of any contribution to the dismissal, and the respondent's failure to pay terminal benefits or follow due process.
Court Disposition
Judgment for the claimant.
Orders
- Respondent to pay Kshs.59,600 as compensation for unfair dismissal.
- Respondent to pay Kshs.14,900 as one month's salary in lieu of notice.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT NAIROBI
CAUSE NO. 1750 OF 2013
(Before Hon. Justice Mathews N. Nduma)
BENSON MAKAU.............................................................CLAIMANT
VERSUS
OCEAN SOLE LIMITED.............................................RESPONDENT
J U D G M E N T
1. This claim is undefended in that, the Claimant testified under oath in support of all the particulars of claim and the Respondent closed their case without tendering any evidence in rebuttal. The testimony by the Claimant is therefore uncontroverted and the Claimant has proved all the particulars of claim on a balance of probabilities and judgment is entered in favour of the Claimant as against the Defendant as follows:-
a) One month salary in lieu of notice Kshs.14,900.
b) 12 days salary in lieu of leave days not taken Kshs.5,960.
c) Underpaid salary from 2011 to June 2012 Kshs.69,816; for July 2012 to 31st July 2013 Kshs.72,930 and for August 2013 7,170. The underpayments are in terms of the general wage orders published for the respective periods.
d) Compensation
The Claimant was employed as an animal carver from 2009. He worked continuously until 16th September, 2013 when upon reporting to work, he was summoned by the Production Manager Idah together with the Director Mr. Desmond Tutu. The two summarily dismissed him from employment without notice, notice to show cause or a disciplinary hearing. The summary dismissal violated sections 41, 43 and 45 of the Employment Act. The Claimant is entitled to compensation in terms of sections 49(1) (c) and 49(4) of the Employment Act. In this respect the Claimant had served the Respondent diligently the period of four (4) years. He was no paid any terminal benefits upon dismissal. He was underpaid for most of the years he served. The claimant did not contribute to the dismissal from the evidence before court. The Claimant is awarded four (4) months’ salary in compensation for the unlawful and unfair dismissal.
2. In the final analysis Judgment is entered in favour of the Claimant as against the Respondent as follows:-
a) Kshs.59,600 being four (4) months salary in compensation for the unlawful and unfair dismissal.
b) Kshs.14,900 being one month’s salary in lieu of notice.
c) Kshs.149,916 underpayments for the years 2011 to 2013.
Total award Kshs.224,416.
(d) Interest at court rates from date of judgment for (a) above and from date of filing suit in respect of (b) & (c) above.
(e) Respondent to pay costs of the suit.
Dated and Signed in Kisumu this 20th day of December, 2018
Mathews N. Nduma
Judge
Delivered and signed in Nairobi this 18th day of January, 2019
Maureen Onyango
Judge
Appearances
M/s Githogori for Claimant
Mr. Namada for Respondent
Daniel Ngumbi – Court Clerk