[2019] KEELRC 571 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT

AT KISUMU

CASE NO. 358 OF 2017

(Before Hon. Justice Mathews N. Nduma)

CALISTER ONYANGO JUMA................................CLAIMANT

VERSUS

GUMI STEEL LIMITED...................................RESPONDENT

JUDGMENT

1. The suit commenced by a memorandum of claim dated 18th August 2017 and filed on 21st August 2017. The claimant seeks maximum compensation for unlawful and unfair dismissal and payment of terminal benefits to wit one month salary in lieu of notice and unpaid leave days not taken for four years.

2. Summons to enter appearance and the memorandum of claim were served on the respondent on 16th September 2017 and a return of service by one Julius Otieno Raminya, a process server filed on 15th May 2018.

3. Matter came for formal proof and CW1 testified that he relied on a witness statement dated 18th August 2017 as his evidence in chief and documents annexed to the statement of claim.

4. CW1 testified that he was employed by the respondent as a casual general labourer on or about 6th March 2013 at a monthly salary of Kshs. 11,500. It was computed as Kshs. 350 per day and paid. The claimant worked diligently until 17th April 2017 when the claimant reported to work as usual and was informed by the respondent that his employment had been terminated without notice. The respondent did not charge the claimant with any misconduct, did not give him any notice to show cause, any reason for the dismissal nor was the claimant given opportunity to explain why he ought not to be dismissed from employment. The claimant had no warning for any misconduct. His record at work was good. The claimant was not paid terminal benefits upon dismissal. CW1 testified that the dismissal was unlawful and unfair and seeks grant of the reliefs set out in the statement of claim.

5. The claimant has established on a balance of probabilities that he had served the respondent continuously for a period of about four years and therefore was entitled to protection and minimum terms of service under part V and VI of the Employment Act 2007.

6. The claimant has established that the respondent dismissed him summarily from service without notice, notice to show cause, any reason and without a hearing.

7. The court finds that the respondent violated Sections 36, 41, 43 and 45 of the Employment Act, 2007 and the claimant is entitled to compensation in terms of Section 49(1) (c) and (4) of the Act. In this regard the claimant did not contribute to the dismissal, was dismissed without notice. He was not paid any terminal benefits or compensation for the loss of employment. The claimant lost career prospects after serving diligently for a period of four (4) years. The claimant suffered loss and damage as a result of the unlawful conduct by the respondent.

8. The court deems this an appropriate case to award the claimant four (4) months salary in compensation for the unlawful dismissal in the sum of Kshs. 46,000.

9. The claimant is also awarded one month salary in lieu of notice in the sum of Kshs. 11,500.

10. Furthermore, the claimant has proved that he was denied annual leave for a period of four (4) years served. The court awards the claimant payment in lieu of leave days not taken for three (3) years in the sum of Kshs. 34,500. The first year is caught by the doctrine of latches.

11. Judgment is therefore entered in favour of the claimant in the total sum of Kshs. 115,500. The award is payable with interest at court rates from date of judgment till payment in full.

12. The respondent to pay costs of the suit.

Judgment Dated, Signed and delivered this 9th day of October, 2019

Mathews N. Nduma

Judge

Appearances

Mr. Odhiambo for claimant.

Chrispo – Court Clerk