[2019] KEELRC 139 (KLR)
The court found that the respondent failed to provide any evidence or justification for the termination of the claimant's employment, as required by the Employment Act, 2007. The claimant's response to the show cause letter was not considered, and her appeal was ignored. The alleged misconduct was not within her job...
Source-derived case information.
- Citation
- [2019] KEELRC 139 (KLR)
- Parties
- Claimant: Christine Cherotich; Respondent: Mumias Sugar Company Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Cause 64 of 2017
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- judgment for the claimant
- Judges
- MN Nduma
- Legal Topics
- Unfair Termination, Compensation for Wrongful Dismissal, Burden of Proof in Dismissal, Procedural Fairness, Statutory Entitlements
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Christine Cherotich
Claimant
Mumias Sugar Company Limited
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the termination of the claimant's employment was unlawful and unfair.
- 2 Whether the respondent had a valid reason for terminating the claimant's employment as required by law.
- 3 Whether the claimant is entitled to compensation and other remedies for wrongful termination.
Ratio Decidendi
The court found that the respondent failed to provide any evidence or justification for the termination of the claimant's employment, as required by the Employment Act, 2007. The claimant's response to the show cause letter was not considered, and her appeal was ignored. The alleged misconduct was not within her job responsibilities, and her employment record was exemplary. The court held that the termination was both procedurally and substantively unfair, in violation of Sections 41, 43, and 45 of the Employment Act. Considering the claimant's 20 years of unblemished service, lack of contribution to the termination, and inability to secure alternative employment, the court awarded her...
Court Disposition
judgment for the claimant
Orders
- The respondent shall pay the claimant Kshs. 2,101,984 in compensation for unfair termination.
- Interest at court rates from the date of judgment until payment in full.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT BUNGOMA
CAUSE NO. 64 OF 2017
(Before Hon. Justice Mathews N. Nduma)
CHRISTINE CHEROTICH..................................................................CLAIMANT
VERSUS
MUMIAS SUGAR COMPANY LIMITED.....................................RESPONDENT
JUDGMENT
1. The claimant filed suit on 9th February 2016, seeking maximum compensation for unlawful and unfair termination of employment. The claimant was employed by the respondent in various capacities from 1995 up to August 2014, a period of about 20 years. At the time of termination of employment the claimant served as Warehouse Manager at Nairobi.
2. The claimant worked diligently and without blemish and earned Kshs. 210,198. 40 at the time of termination.
3. The employment of the claimant was terminated on allegations that she had failed to surcharge transporters who directly delivered goods directly to the respondent’s customers meant for warehouse transfers, allegedly occasioning the respondent a cost of Kshs. 62,904,256. 60. The claimant received a show cause letter dated 14th July 2014 to which she responded explaining the situation. The claimant denied any job responsibility connected to the allegation made against her since that was the direct docket and responsibility of the Transport Manager. The claimant testified that the respondent had no valid reason to terminate her employment therefore and at all material time as seen in the leaver’s form dated 18th August 2014, the respondent described the claimant as very efficient at her work, and was of excellent conduct and very honest at work.
4. That the response to the show cause letter was never considered and the appeal against the termination was also ignored.
5. The respondent did not adduce any evidence in rebuttal to the testimony under oath by the claimant. The respondent in the circumstances failed to discharge the onus placed on it under Section 43(1) and (2) read with Section 47(5) of the employment Act, 2007 to demonstrate that it had a valid reason to terminate the employment of the claimant and therefore the termination was justified.
6. On the contrary the claimant has demonstrated on a balance of probabilities that the termination of her employment was wrongful and unfair and was in violation of Sections 41, 43 and 45 of the Employment Act, 2007.
7. The court therefore finds that the termination was unlawful and unfair. That the claimant is entitled to compensation in terms of Section 49(1) (c) and (4) of the Act.
8. In this respect, the claimant served the respondent diligently for a period of about 20 years. The claimant did not contribute to the termination and was wrongly blamed for mistakes of other persons who did not work under her. That the claimant lost prospects of continued gainful employment and was unable to get alternative employment up to the time of hearing of this suit. The claimant was not compensated for the job loss. The claimant was paid terminal benefits but suffered loss and damage as a result of the wrongful termination.
9. The court has considered the case of Patrick Muita Martnis vs National Police Service Commission and others Petition NO. 48 of 2018 in which the court reinstated the petitioner to his employment without loss of any benefits.
10. The court has also considered the case of Daniel Kiplagat Kipkebut and SMEP Deposit Taking Micro Finance Limited (2016) eKLRin which the court awarded the claimant who had worked for a period of about 6 years the equivalent of six months salary in compensation for the unlawful dismissal.
11. The court considers all the factors above especially the 20 years unblemished service by the claimant and awards her the equivalent of ten (10) months salary in compensation for the unlawful termination in the sum of Kshs. (210,198. 40x10) Kshs. 2,101,984.
12. In the final analysis judgment is entered in favour of the claimant as a against the respondent as follows:
(a) Kshs. 2,101,984 in compensation.
(b) Interest at court rates from date of judgment till payment in full.
(c) Costs of the suit.
Judgment Dated, Signed and delivered this 10th day of December, 2019
Mathews N. Nduma
Judge
Appearances
Mr. Achoki for Claimant
Mr. Otieno for Respondent
Osotsi – Court Clerk