[2020] KEELRC 1204 (KLR)
The court found that the claimant's employment was terminated without notice and without any valid reason, in violation of Sections 36, 41, 43, and 45 of the Employment Act, 2007. The respondents failed to attend the hearing or provide any justification for the termination. The claimant was therefore entitled to...
Source-derived case information.
- Citation
- [2020] KEELRC 1204 (KLR)
- Parties
- Claimant: Chriscenct M. Ondere; Respondent: The Principal, St. Martin Kisoko Special School; Respondent: Board of Management, St. Martin Kisoko Special School
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Case 25 of 2018
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- judgment for the claimant
- Judges
- MN Nduma
- Legal Topics
- Unfair Termination, Notice Pay, Compensation for Job Loss, Employment Contracts
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Chriscenct M. Ondere
Claimant
The Principal, St. Martin Kisoko Special School
Respondent
Board of Management, St. Martin Kisoko Special School
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 for unfair termination and payment in lieu of notice.
- 3 Whether the claimant is entitled to salary for the period after termination until the date of filing suit.
Ratio Decidendi
The court found that the claimant's employment was terminated without notice and without any valid reason, in violation of Sections 36, 41, 43, and 45 of the Employment Act, 2007. The respondents failed to attend the hearing or provide any justification for the termination. The claimant was therefore entitled to compensation for unfair termination, calculated as four months' salary, and payment in lieu of one month's notice. The claim for salary for the period after termination was rejected as there was no legal basis for such payment since the claimant did not work during that period. The total award was Kshs. 93,000, with interest from the date of judgment until payment in full, and...
Court Disposition
judgment for the claimant
Orders
- The claimant is awarded Kshs. 93,000 as compensation and notice pay.
- The award is payable with interest from the date of judgment until payment in full.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT KISUMU
CAUSE NO. 25 OF 2018
(Before Hon. Justice Mathews N. Nduma)
CHRISCENT M. ONDERE ....................................................CLAIMANT
VERSUS
THE PRINCIPAL
ST. MARTIN KISOKO SPECIAL SCHOOL............1ST RESPONDENT
BOARD OF MANAGEMENT
ST. MARTIN KISOKO SPECIAL SCHOOL...........2ND RESPONDENT
JUDGMENT
1. This suit is undefended the respondent having failed to attend the hearing despite having responded to the statement of claim filed on 24th January 2018 by a statement of response dated 20th September 2018 and having been served with a hearing notice dated 23rd July 2019 for hearing on 6th October 2019. The claimant in the statement of claim prays for liquidated special damages comprising of three (3) months salary in lieu of notice in the sum of Kshs. 34,875 and unpaid salary for 25 months from the date of termination on 6th October 2015 to the date of filing suit.
2. The claimant testified under oath that he worked as an accounts clerk for the respondent, a special school earning a salary of Kshs. 11,625 per month. The claimant testified that he was dismissed from employment and was not given any reason or notice and was not paid in September 2015.
3. The claimant produced a letter of employment dated 27th April 2010 which shows that his basic salary was Kshs. 8,750 plus Kshs. 2,200 house allowance and Kshs. 475 medical allowance. The claimant was paid for NSSF in terms of the letter. The letter does not provide for termination notice and so, the claimant is entitled to the minimum termination notice of one month or payment of one month salary in lieu of notice.
4. As regards the question whether the claimant is entitled to payment of salary from date of termination in October 2015 to date of filing suit, there is no basis in law for such payment since the claimant did not work during that period.
5. However, the claimant prays for compensation for the unlawful and unfair termination of employment which the claimant testified was wrongful and unfair.
6. The court finds that the claimant has proved on a balance of probabilities that his employment was terminated without notice and without any valid reason by the respondent. The respondent did not adduce any evidence to justify the termination.
7. Accordingly, the court finds that the termination was in violation of Sections 36, 41, 43 and 45 of the Employment Act, 2007.
8. The claimant is entitled to compensation in terms of Section 49(1) (c) and (4) of the Act. In this regard the claimant had served for a period of five years. He did not contribute to the termination. He was not compensated for job loss and lost career prospects. The claimant suffered loss and damage. The claimant was not paid salary for the month of September 2015 which is an aggravating factor.
9. The court awards the claimant the equivalent of four (4) months salary in compensation in the sum of Kshs. 11,625x4) Kshs. 46,500.
10. The court also awards the claimant Kshs. 11,625 in lieu of one month notice.
11. Judgment is entered in favour of the claimant against the respondent in the sum of Kshs. 93,000. The award is payable with interest from date of judgment till payment in full. Respondent to pay costs of the suit.
Judgment Dated, Signed and delivered at Nairobi this 30th day of April, 2020
Mathews N. Nduma
Judge
ORDER
In view of the declaration of measures restricting court of operations due the COVID-19 pandemic and in light of the directions issued by his Lordship, the Chief Justice on 15th March 2020, this judgment has been delivered to the parties online with their consent. They have waived compliance with Order 21 rule 1 of the Civil Procedure Rules which requires that all judgments and rulings be pronounced in open court. In permitting this course, this court has been guided by Article 159(2)(d) of the Constitution which requires the court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 18 of the Civil Procedure Act (chapter 21 of the Laws of Kenya) which impose on this court the duty of the court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes.
Mathews N. Nduma
Judge
Appearances
Claimant in person
AG’S office Kakamega
Chrispo – Court Clerk