[2017] KEELRC 588 (KLR)
The court found that the respondent failed to justify the dismissal of the claimant, as required by law. The claimant's evidence, being unchallenged due to the respondent's failure to file a defence or attend the hearing, was accepted as truthful. The court held that the dismissal was unfair and wrongful, entitling...
Source-derived case information.
- Citation
- [2017] KEELRC 588 (KLR)
- Parties
- Claimant: Derick Mwanthi Kisyanga; Respondent: Hebatullah Brothers Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 1194 of 2014
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- Judgment for the claimant. Claim for unfair dismissal and terminal dues allowed.
- Judges
- DI Wasike, MN Nduma
- Legal Topics
- Unfair Termination, Wrongful Dismissal, Annual Leave Entitlement
- 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
Derick Mwanthi Kisyanga
Claimant
Hebatullah Brothers Limited
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the claimant was unfairly and wrongfully dismissed from employment.
- 2 Whether the claimant is entitled to payment in lieu of notice, compensation for unfair termination, and accrued leave.
Ratio Decidendi
The court found that the respondent failed to justify the dismissal of the claimant, as required by law. The claimant's evidence, being unchallenged due to the respondent's failure to file a defence or attend the hearing, was accepted as truthful. The court held that the dismissal was unfair and wrongful, entitling the claimant to compensation for unfair termination, payment in lieu of notice, and accrued leave. The court relied on statutory provisions placing the burden of proof on the employer and the absence of any rebuttal from the respondent.
Court Disposition
Judgment for the claimant. Claim for unfair dismissal and terminal dues allowed.
Orders
- Respondent to pay claimant one month’s salary in lieu of notice: KES 12,331.
- Respondent to pay claimant eight months’ salary for unfair termination: KES 98,648.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OFKENYA
AT NAIROBI
CAUSE NUMBER 1194 OF 2014
DERICK MWANTHI KISYANGA..................................CLAIMANT
VERSUS
HEBATULLAH BROTHERS LIMITED...................RESPONDENT
JUDGEMENT
1. By a memorandum of claim filed on 17th July, 2014 the claimant averred that he was employed by the respondent as a general worker at a salary of Kshs 12,331/= per month. He worked continuously for a whole year with no annual leave.
2. The claimant further pleaded that on or about the month of March 2014 he fell ill and requested for permission to attend hospital which was duly granted. The doctor after attending to him gave him 7 days bed rest due to the serious nature of his illness.
3. He averred that when he reported to work on 28th April, 2014 the respondent maliciously terminated his services accusing him of frequent absenteeism, using abusive language to his immediate supervisors and gross misconduct.
4. The claimant refuted these allegations and averred that he always carried out his duties with due dispatch and diligence and that the dismissal was actuated by malice. The claimant therefore sought judgment against the respondent for wrongful dismissal and unfair termination of services. He also sought to be paid for his annual leave not taken. The respondent entered appearance through M/s Kangethe Waitere & Co Advocates but did not file a defence to the claim. Further the matter proceeded ex-parte after the court became satisfied that the respondent was served with the hearing notice.
5. In his oral evidence in court the claimant repeated most of the averments in the memorandum of claim. He denied absconding work and further that he was rude. The matter having proceeded ex-parte the court has no option but to believe the claimant’s evidence which was largely a replication of his averments in the pleadings. The burden of proof and justifying reasons for dismissal rests on the employer. The employer did not file a defence to this claim. The court will therefore enter judgement against the respondent as follows:
a. One month’s salary in lieu of notice 12,331
b. Eight months salary for unfair
termination of service 98,648
c. Leave untaken during the period of employment 25,893
136,872
d. Costs
6. It is so ordered.
Dated at Nairobi this 22nd day of September, 2017
ABUODHA J. N.
JUDGE
Delivered this 22nd day of September, 2017
NDERI NDUMA
JUDGE
In the presence of:
……………….…….for Claimant
………………….for Respondent