[2019] KEELRC 446 (KLR)
The court found that the claimant was dismissed without a reason, but since there were no allegations of misconduct, poor performance, or ill health, the claimant was not entitled to notice and hearing under section 41 of the Employment Act, 2007. The termination was governed by section 35, entitling the claimant to...
Source-derived case information.
- Citation
- [2019] KEELRC 446 (KLR)
- Parties
- Claimant: David Okoth Ouma; Respondent: Civicon Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 1484 of 2016
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- Judgment for the claimant for Kshs. 30,704.00 plus interest and partial costs.
- Judges
- B Ongaya
- Legal Topics
- Unlawful Termination, Notice Pay, Service Pay, Leave Entitlement, Costs of Suit
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
David Okoth Ouma
Claimant
Civicon Limited
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the claimant's termination was unlawful or illegal.
- 2 Whether the claimant is entitled to severance pay, terminal benefits, notice pay, leave, underpayments, transport allowance, and gratuity.
- 3 Whether the claimant is entitled to general damages for wrongful termination.
Ratio Decidendi
The court found that the claimant was dismissed without a reason, but since there were no allegations of misconduct, poor performance, or ill health, the claimant was not entitled to notice and hearing under section 41 of the Employment Act, 2007. The termination was governed by section 35, entitling the claimant to one month’s salary in lieu of notice. As the claimant had not served a full year, he was not entitled to leave or service pay under the relevant statutory provisions. The court declined the other claims and awarded partial costs due to the respondent's failure to defend the suit.
Court Disposition
Judgment for the claimant for Kshs. 30,704.00 plus interest and partial costs.
Orders
- The respondent shall pay the claimant Kshs. 30,704.00 by 1st December 2019, failing which interest shall accrue from the date of judgment until full payment.
- The claimant is awarded Kshs. 10,000.00 as partial costs of the suit.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF KENYA AT NAIROBI
CAUSE NO. 1484 OF 2016
DAVID OKOTH OUMA.......................................CLAIMANT
VERSUS
CIVICON LIMITED.......................................RESPONDENT
(Before Hon. Justice Byram Ongaya on Friday 1st November, 2019)
JUDGMENT
The memorandum of claim was filed on 29. 07. 2016 through Samuel Nyambane & Company Advocates. The claimant prayed for judgment against the respondent for:
a) A declaration that the respondent’s action of sacking the claimant is illegal and unlawful and the claimant is entitled to severance pay, terminal benefits, I month in lieu of notice, leave, salary, underpayments, transport allowance and gratuity amounting to Kshs. 326, 486. 15 being:
i. One month salary in lieu of notice Kshs.20, 704. 00.
ii. Service pay for each year served Kshs.23, 889. 23.
iii. Leave days for years served Kshs.33, 444. 92.
iv. General damages for wrongful termination Kshs.248, 448. 00.
b) General damages for wrongful termination.
c) Costs of the suit and interest.
d) Any other relief that the Honourable Court may deem fit and just to grant.
The claimant’s case is that the respondent employed him from 02. 09. 2014 to 30. 06. 2015 when, without reasonable cause or justification the respondent unilaterally sacked him from his gainful employment.
The summons to enter appearance was served upon the respondent together with the memorandum of claim on 05. 08. 2016. The respondent failed to enter appearance or to file a defence. Despite service, the respondent failed to attend Court including on directions and hearing of the suit.
The claimant testified that he was dismissed on 30. 06. 2015 without a reason. In so far as no reason was advanced and no allegations of poor performance, ill health or misconduct were levelled, the Court returns that the claimant had no legitimate expectation for a notice and a hearing as per section 41 of the Employment Act, 2007. The termination was under section 35 of the Act and the claimant is awarded Kshs. 20, 704. 00 as prayed for being one month pay in lieu of termination notice.
The claimant had not served for a full year and the other prayers as made are declined in view of the provisions of sections 28, 35, and 49 of the Act. In particular the Court returns that leave and service pay had not been earned and the termination was not unfair.
The claimant is awarded Kshs.10, 000. 00 partial costs of the undefended suit.
In conclusion judgment is hereby entered for the claimant against the respondent for payment of Kshs.30, 704. 00 by 01. 12. 2019 failing interest to be payable thereon from the date of this judgment till full payment.
Signed, dated and delivered in court at Nairobi this Friday, 1st November, 2019.
BYRAM ONGAYA
JUDGE