[2019] KEELRC 2114 (KLR)
The court found that the claimant was indeed an employee of the respondent, as evidenced by employment records and correspondence. The dismissal was effected without notice and without affording the claimant the procedural safeguards required under Section 41 of the Employment Act. The respondent failed to prove...
Source-derived case information.
- Citation
- [2019] KEELRC 2114 (KLR)
- Parties
- Claimant: Charles Nderitu Gitonga; Respondent: Kirinyaga Construction (K) Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Cause 77 of 2015
- Procedural Posture
- Employment Claim / Judgment
- Outcome
- claim allowed in part
- Judges
- AN Makau
- Legal Topics
- Unlawful Dismissal, Salary Arrears, Notice Pay, Gratuity, Terminal Dues, Employment Contracts
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Charles Nderitu Gitonga
Claimant
Kirinyaga Construction (K) Limited
Respondent
Procedural Posture
Employment Claim / Judgment
Legal Issues
- 1 Whether the claimant was unlawfully dismissed from employment without notice.
- 2 Whether the claimant is entitled to salary arrears, notice pay, gratuity, and damages for unlawful dismissal.
- 3 Whether the respondent complied with the procedural safeguards under Section 41 of the Employment Act.
Ratio Decidendi
The court found that the claimant was indeed an employee of the respondent, as evidenced by employment records and correspondence. The dismissal was effected without notice and without affording the claimant the procedural safeguards required under Section 41 of the Employment Act. The respondent failed to prove payment of the claimant's dues, and the claimant was entitled to one month's salary in lieu of notice, five months' unpaid salary, gratuity for years of service, and damages for unlawful dismissal. The court awarded the sums claimed, plus costs and interest, holding that the respondent's actions amounted to unlawful dismissal and breach of statutory obligations.
Court Disposition
claim allowed in part
Orders
- The respondent shall pay the claimant one month's salary as notice (Kshs. 30,000).
- The respondent shall pay the claimant five months' unpaid salary (Kshs. 150,000).
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT & LABOUR RELATIONS
COURT OF KENYA AT NYERI
CASE NO. 77 OF 2015
CHARLES NDERITU GITONGA.............................................CLAIMANT
VERSUS
KIRINYAGA CONSTRUCTION (K) LIMITED..................RESPONDENT
JUDGMENT
1. The Claimant sued the Respondent seeking to recover for unlawful dismissal. The Claimant averred that he was employed as a mason on 8th October 2009 and was deployed to work as such in southern Sudan earning a net salary of Kshs. 30,000/-. He was an employee of the Respondent till his suspension in May 2012 without notice. He averred that he was instructed by the Respondent’s projects manager to proceed to the head office in Nairobi for more information about his suspension. He was advised to go home and await communication. He avers he was not paid salary for the months of January 2012 to May 2012. He thus sought the payment of damages for the unlawful dismissal – Kshs. 360,000/-, salary arrears for the 5 months – Kshs. 150,000/-, terminal dues for the years of service, one month’s salary in lieu of notice, costs of the suit plus interest.
2. The Respondent in its defence averred that the Claimant was not suspended from employment and that he was to report to the Nairobi office but he failed to do so and instead filed this suit. The Respondent averred that the suit was filed out of time as the Claimant removed himself from employment in January 2012. The Respondent averred that the Claimant was paid all the salary for days worked and that the suit should be dismissed with costs.
3. The Claimant testified and stated that he was dismissed without notice after working for the Respondent in Southern Sudan. The Claimant submitted that the Respondent had acknowledged the fact of his employment in the letter of reply to the demand letter. The Claimant thus sought his dues as per the claim.
4. The Claimant was indeed an employee of the Respondent as shown by his employment card and the letters by the Respondent in relation to the employees who made demand for payment of dues after the service in South Sudan. The Claimant was a mason and his salary for 5 months was claimed as was his notice pay. He also sought terminal dues being gratuity of Kshs. 162,000/-.
5. The dismissal of the Claimant was without notice. He was not afforded the safeguards under Section 41 of the Employment Act. He proved that he was not paid his dues as the records from the Labour Office and the Respondent did not have any reference to payment made to him though he was listed as one of the employees who was seeking dues. He thus is entitled to:-
a. One month’s salary as notice – Kshs. 30,000/-
b. 5 months unpaid salary Kshs. 150,000/-
c. Gratuity for his service Kshs. 162,000/-
d. Damages for his unlawful dismissal – Kshs. 150,000/- being 3 month’s salary
e. Costs of the suit
f. Interest on the sums in a), b), c) and d) above at court rates from the date of judgment till payment in full.
It is so ordered.
Dated and delivered at Nyeri this 5th day of March 2019
Nzioki wa Makau
JUDGE
I certify that this is atrue copy of the Original
Deputy Registrar