[2018] KEELRC 2264 (KLR)
The court found that the respondent did not provide sufficient evidence to rebut the claimant's averments regarding unfair termination and underpayment. The respondent failed to discharge the statutory burden of proof for the reasons for termination. In the absence of documentary evidence or credible testimony from...
Source-derived case information.
- Citation
- [2018] KEELRC 2264 (KLR)
- Parties
- Claimant: Dominic Ooko Odero; Respondent: Farook Wali Mohammed
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 557 of 2012
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- Judgment for the claimant.
- Judges
- DI Wasike
- Legal Topics
- Unfair Termination, Minimum Wage, Terminal Dues, Notice Pay, Gratuity, House Allowance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Dominic Ooko Odero
Claimant
Farook Wali Mohammed
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the claimant was unfairly terminated from employment without notice or valid reason.
- 2 Whether the claimant was paid less than the prescribed minimum wage and denied terminal dues.
- 3 Whether the claimant is entitled to payment of notice, leave, gratuity, house allowance, and underpayments.
Ratio Decidendi
The court found that the respondent did not provide sufficient evidence to rebut the claimant's averments regarding unfair termination and underpayment. The respondent failed to discharge the statutory burden of proof for the reasons for termination. In the absence of documentary evidence or credible testimony from the respondent, the court accepted the claimant's account. The court held that the claimant was entitled to one month's pay in lieu of notice, pro rata leave, gratuity for completed years of service, house allowance, and underpayments, all calculated in accordance with statutory minimums and the period of service. Judgment was entered in favour of the claimant for the specified...
Court Disposition
Judgment for the claimant.
Orders
- Respondent to pay claimant one month's pay in lieu of notice: Kshs 7,049.50.
- Respondent to pay claimant pro rata leave: Kshs 9,046.90.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF
KENYA AT NAIROBI
CAUSE NUMBER 557 OF 2012
DOMINIC OOKO ODERO.……………………..…….………..CLAIMANT
VERSUS
FAROOK WALI MOHAMMED….……..………………….RESPONDENT
JUDGEMENT
1. The claimant averred that he was employed by the respondent as a shamba boy in August 2007 at a monthly salary of Kshs 4,000/= which was later increased to Kshs 4,500.
2. He was dismissed from service on 4th June, 2009 without any warning on notice. He was further not paid his terminal dues. The claimant further averred that he was paid less than the prescribed minimum wage.
3. The respondent in his response to the claim admitted the claimant was his employee but averred that he failed in his duties and had been waned severally about it. According to the respondent on 4th June, 2009 the claimant deserted his place of work which led to bread in and the house was vandalized.
4. The claimant was explained to reasons of his termination and given an opportunity to defend himself. According to the respondent the dispute was reported to Labour Office but could not be resolved as this claimant made unreasonable demands prompting him to deposit Kshs 15,000 at the Labour Office.
5. This matter proceeded ex parte hence the court did not have the benefit of listening to the respondent’s version of the dispute. It is not in dispute that the claimant was the respondent’s employee.
6. The respondent further did not deny the period for which the claimant worked for him. In absence of any supporting document attached to the memorandum of response it becomes difficult to resist the claimants averments since the burden of proof of reasons for termination of services rests with the employer.
7. The court will therefore enter judgement in favour of the claimant as follows:
a. One month’s pay in lieu of notice 7,049. 50
b. Pro rata leave 9,046. 90
c. Gratuity @15 days per complete year of service 3,524. 75
d. House allowance 16,354. 25
e. Under payments 25,339. 35
61,324. 75
8. It is so ordered.
Dated at Nairobi this 9th day of February, 2018
Abuodha J. N.
Judge
Delivered this 9th day of February, 2018
Abuodha J. N.
Judge
In the presence of:-
…………………………......for the Claimant
……………………………..for the Respondent