[2015] KEELRC 815 (KLR)
The court found that the Claimant's employment was terminated unfairly as the Respondent failed to provide reasons for termination or follow due process. The Claimant's evidence of underpayment, non-remittance of NSSF deductions, and unpaid leave was unchallenged. The Labour Officer's computation of underpayments...
Source-derived case information.
- Citation
- [2015] KEELRC 815 (KLR)
- Parties
- Claimant: Dishon Saenyi Musaba; Respondent: Kims Poultry Farm Ltd
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Cause 158 of 2014
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- Claim allowed in part; judgment for the Claimant.
- Judges
- MSA Makhandia
- Legal Topics
- Unfair Termination, Underpayment of Wages, Statutory Deductions, Annual Leave Entitlement, Compensation for Dismissal
- 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
Dishon Saenyi Musaba
Claimant
Kims Poultry Farm Ltd
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the termination of the Claimant's employment was unfair or wrongful.
- 2 Whether the Claimant was underpaid in violation of statutory minimum wage requirements.
- 3 Whether the Respondent failed to remit statutory NSSF deductions.
Ratio Decidendi
The court found that the Claimant's employment was terminated unfairly as the Respondent failed to provide reasons for termination or follow due process. The Claimant's evidence of underpayment, non-remittance of NSSF deductions, and unpaid leave was unchallenged. The Labour Officer's computation of underpayments was adopted. The court held that the Claimant was entitled to underpayments, pay in lieu of notice, NSSF deductions, unpaid leave, and compensation equivalent to seven months' wages. Severance pay was denied as redundancy was not proven. The Respondent's failure to participate in the proceedings meant the Claimant's case was uncontroverted and remedies were granted as claimed and...
Court Disposition
Claim allowed in part; judgment for the Claimant.
Orders
- Respondent to pay Claimant Kshs 63,021 for underpayments.
- Respondent to pay Claimant Kshs 6,974 for pay in lieu of notice.
Full Case Text
Judgment text and source record
56 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAKURU
CAUSE NO. 158 OF 2014
DISHON SAENYI MUSABA CLAIMANT
V
KIMS POULTRY FARM LTD RESPONDENT
JUDGMENT
Dishon Saenyi Musaba (Claimant) sued Kims Poultry Farm Ltd (Respondent) on 21 May 2014 in a vaguely worded Memorandum of Claim alleging that he was underpaid and seeking Kshs 109,870/- on account of underpayments, pay in lieu of notice, severance pay, contributions to National Social Security Fund not remitted and unpaid annual leave.
On 2 July 2014, the Claimant filed an Amended Memorandum of Claim in which he alleged unfair/wrongful termination of employment and seeking additionally, compensation.
An affidavit of service sworn by one Stanley Maina Waiganjo and filed in Court on 2 July 2014 deposed that the Respondent’s General Manager Robert Moita was served. A copy of Notice of Summons duly stamped and signed was annexed.
On 25 July 2014, the Court fixed the Cause for hearing on 27 April 2015.
An affidavit of service was filed in Court on 27 April 2015 attesting to service of a hearing notice upon the Respondent’s Director, Mr. Kim.
The Respondent, despite the service of Notice of Summons and hearing notice did not file a Response nor appear during the hearing and the Cause therefore proceeded as an undefended Cause.
The Claimant testified and he stated that the Respondent employed him in 2004 as a night guard. He produced a copy of a recommendation letter attesting to the employment from 2004 to April 2011.
On remuneration, the Claimant stated that he was earning Kshs 4,500/- in 2004, and that the prescribed minimum wage at that time was Kshs 6,974/- and the wage was never increased during the tenure of employment.
The Claimant further stated that he was being deducted National Social Security Fund contributions but the Respondent did not remit the same.
As regards the termination of employment, he stated that no reasons were offered and that the same was unfair.
The Claimant reported a dispute to the local Labour Office and the District Labour Officer met with the Respondent’s representative and an agreement was reached on payment of wages for April and May 2011. These were paid according to the Labour Officers letter dated 27 June 2011, but other entitlements were left outstanding.
Consequently, the Labour Officer computed the underpayments at Kshs 63,021/35 and duly informed the Respondent through his letter of 21 July 2011.
The Claimant filed written submissions on 11 May 2015 and the Court has considered them.
Evaluation
The facts as set out in the Memorandum of Claim were not responded to.
Further, the Claimant’s evidence was not controverted.
The legal effect is that there are no real disputes of facts as presented by the Claimant.
The Court therefore finds that the termination of the employment of the Claimant was unfair.
Appropriate remedies
Underpayments
The Claimant sought Kshs 63,021/- on account of underpayments.
The Labour Officer had calculated the underpayment as Kshs 63,021/35 based on the area the Claimant was employed. The letter referred to Legal Notice No. 98 of 2010. Under the Notice, the minimum wage for a night watchman was set at Kshs 6,974/-.
The Court would adopt the calculations by the Labour Officer and find that the Claimant is entitled to underpayments of Kshs 63,021/-.
Pay in lieu of notice
Under this head, the Claimant sought Kshs 6,974/-. Pursuant to sections 35(1)(c) and 36 of the Employment Act, 2007 he is entitled to the same, this being the minimum wage at the material time for the area the Claimant was working.
Severance pay
The Claimant sought severance pay for 7 years. He did not prove that he was declared redundant and this relief is not applicable.
NSSF deductions not remitted
On this head, the Claimant sought Kshs 4,200/-. The Court finds in his favour.
2 years unpaid leave
The Claimant sought Kshs 11,265/-. The Court awards him the same.
Compensation
The Court has reached a conclusion the termination of the Claimant’s employment was unfair.
The Court would award him the equivalent of 7 months wages as compensation. The Court quantifies the same as Kshs 48,818/- (based on the minimum wage of Kshs 6,974/-).
Conclusion and Orders
The Court finds and holds that the termination of the Claimant’s employment was unfair and awards him and orders the Respondent to pay him
Underpayments Kshs 63,021/-
Pay in lieu of Notice Kshs 6,974/-
NSSF deductions Kshs 4,200/-
Leave Kshs 11,265/-
7 months wages compensation Kshs 48,813/-
TOTAL Kshs 134,273/-
Claimant to have costs of Kshs 30,000/-.
Delivered, dated and signed in Nakuru on this 26th day of June 2015.
Radido Stephen
Judge
Appearances
For Claimant Ms. Muthoni instructed by Karanja Mbugua & Co. Advocates
For Respondent did not file Response