[2018] KEELRC 441 (KLR)
The court found that the claimant's employment was terminated without lawful cause or explanation, and the respondent failed to defend the suit or provide any evidence to the contrary. The claimant's evidence, including his witness statement and supporting documents, established a valid claim for unlawful...
Source-derived case information.
- Citation
- [2018] KEELRC 441 (KLR)
- Parties
- Claimant: Erick Onono Nyangwachi; Respondent: Esgray Company Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 112 of 2016
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- Claim allowed for unlawful termination and related reliefs.
- Judges
- DKN Marete
- Legal Topics
- Unlawful Termination, Compensation for Dismissal, Overtime Pay, Statutory Deductions, Notice Pay
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Erick Onono Nyangwachi
Claimant
Esgray Company Limited
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the termination of the claimant's employment by the respondent was wrongful, unfair and unlawful.
- 2 Whether the claimant is entitled to the reliefs sought.
- 3 Who bears the costs of the claim.
Ratio Decidendi
The court found that the claimant's employment was terminated without lawful cause or explanation, and the respondent failed to defend the suit or provide any evidence to the contrary. The claimant's evidence, including his witness statement and supporting documents, established a valid claim for unlawful termination. In the absence of a defence, the court accepted the claimant's account as unchallenged. The court held that the claimant was entitled to one month's salary in lieu of notice, twelve months' salary as compensation for unlawful termination, and overtime pay for the period worked. The respondent was also ordered to issue a certificate of service and bear the costs of the claim.
Court Disposition
Claim allowed for unlawful termination and related reliefs.
Orders
- The respondent shall pay the claimant one month's salary in lieu of notice (Kshs.6,000.00).
- The respondent shall pay the claimant twelve months' salary as compensation for unlawful termination (Kshs.72,000.00).
Full Case Text
Judgment text and source record
83 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI
CAUSE NO. 112 OF 2016
(Before D. K. N. Marete)
ERICK ONONO NYANGWACHI................................................CLAIMANT
VERSUS
ESGRAY COMPANY LIMITED.............................................RESPONDENT
JUDGEMENT
This matter was originated by way of a Statement of Claim dated 25th January, 2016. It does not disclose any issue on its face.
The matter is not defended or at all.
The claimant’s case is that at all material times relevant to this suit the respondent was operating various businesses including but not limited to a gymnasium.
The claimant’s further case is that on or about November, 2009, he was employed by the respondent vide an oral contract as an attendant at his gymnasium at a gross salary of 6,000. 00 per month.
The claimant’s other case is that he diligently discharged his duties until 17th November, 2014 when the respondent without any lawful cause or explanation and in breach of the contract of employment proceeded to terminate his services. This was for demanding payment of his dues for overtime done at the respondent’s behest and instance between 14th October, 2014 and 30th October, 2014 when his colleague and counterpart was suspended from employment. He has even since prevailed upon the respondent to claim his dues to no avail.
He claims as follows;
a. Underpayment of wages November 2009to 30th April 2010 Kshs.780. 00/
b. Underpayment of wages 1st May 2010to 31st December 2010 Kshs.5,944. 00/
c. Underpayment of wages 1st May 2011to 31st December 2011 Kshs.4,688. 00/
d. Underpayment of wages 1st May 2012To 31st December 2012 Kshs.4,638. 40/
e. Underpayment of wages 1st May 2013to 30th April 2014 Kshs.9,371. 40/
f. Underpayment of wages 1st May 2014to 30th November 2014 Kshs.6,247. 60/
g. Unpaid house allowance 1st November 2009to 31st December 2010 Kshs.919. 50/
h. Unpaid house allowance 1st May 2011to 30th April 2011 Kshs.4200. 00/
i. Unpaid house allowance 1st May 2011to 31st December 2011 Kshs.12,137. 40/
j. Unpaid house allowance 1st January 2012to 30th April 2012 Kshs.13,654. 80/
k. Unpaid house allowance 1st May 2012to 31st December 2012 Kshs.9,103. 20/
l. Unpaid house allowance 1st January 2013to 30th April 2013 Kshs.4,800. 00/
m. Unpaid house allowance 1st May 2013to 31st December 2013 Kshs.11,737. 20/
n. Unpaid house allowance 1st January 2014to 30th April 2014 Kshs.5,868. 60/
o. Unpaid house allowance 1st May 2014to 30th November 2014 Kshs.11,737. 20/
p. Unremitted deductions to NSSFNovember 2009 to 31st December 2009 Kshs.800. 00/
q. . Unremitted deductions to NSSFJanuary 2010 to 30th April 2010 Kshs.1,600. 00/
r. Unremitted deductions to NSSFIn February 2011 Kshs.400. 00/
s. Unremitted deductions to NSSFMay 2014 to November 2014 Kshs.2,800. 00/
t. Unremitted deductions to NHIFNovember 2009 to 31st December 2009 Kshs.320. 00/
u. Unremitted deductions to NHIFin October 2010 Kshs.160. 00/
v. Unremitted deductions to NHIFApril 2013 to May 2013 Kshs.320. 00/
w.Unremitted deductions to NHIFJuly 2013 to December 20013 Kshs.960. 00/
x. Unremitted deductions to NHIFApril 2013 to May 2013 Kshs.320. 00/
y. Unremitted deductions to NHIFJuly 2013 to December 2013 Kshs.960. 00/
z. Unremitted deductions to NHIFJanuary 2014 to June 2014 Kshs.960. 00/
aa. Unremitted deductions to NHIFAugust 2014 to September 2009 Kshs.320. 00/
bb. Unremitted deductions to NHIFIn November 2014 Kshs.160. 00/
cc. One month pay in lieu of notice Kshs.9,780. 95
dd. Unpaid leave allowance Kshs.17,515. 00
ee. 6 accrued leave days between 1st November2009 and 31st October 2010 Kshs.1,231. 20/
ff. 8 accrued leave days between 1st November2010 and 31st October 2011 Kshs.2,064. 80/
gg. 6 accrued leave days between 1st November2011 and 31st October 2012 Kshs.1,827. 60/
hh. 6 accrued leave days between 1st November2012 and 31st October 2013 Kshs.2,823. 60/
ii. 14 accrued leave days between 1st November2013 and 31st October 2014 Kshs.6,588. 40/
jj. 8 hours overtrime for 15 days period workedDouble shift betwe4en 14th October 2014And 30th October 2014 Kshs.10,488. 00/
Total Kshs.168,226. 85
He prays as follows;
a. The principle sum of Kshs.168,226. 85/;
b. Compensation for wrongful dismissal to a maximum of 12 months wages amounting to Kshs.118,710/;
c. Interest on (a) and (b) above at the prevailing commercial bank rates from the due date until payment in full;
d. Costs of the suit;
e. Any other relief that this Honourable Court may deem just and fit to grant.
This matter came to court variously until the 19th October, 2018 when the claimant, in the absence of the respondent submitted on an adoption of his witness statement and list of documents as his evidence in support of the claim. He also urged the court to make a determination on the basis of the pleadings on the record of court.
As aforetasted, this matter is not defended or at all. This is despite service to the respondent.
The issues for determination therefore are
1. Whether the termination of the employment of the claimant by the respondent was wrongful, unfair and unlawful?
2. Whether the claimant is entitled to the relief sought?
3. Who bears the costs of this claim?
The 1st issue for determination is whether the termination of the employment of the claimant by the respondent was wrongful, unfair and unlawful. The claimant sought to rely on his list of documents and witness statement in support of his claim. These are determinate of a valid claim for unlawful termination of the employment of the claimant by the respondent. In the absence of a defence and any evidence controverting the claim, it remains standing. I therefore find a case of unlawful termination and hold as such.
The 2nd issue for determination is whether claimant is entitled to the relief sought. He is. Having won on a case of unlawful termination of employment, he becomes entitled to the relief sought.
I am therefore inclined to allow the claim and order relief as follows;
i. One (1) months salary in lieu of notice......................................Kshs.6,000. 00
ii. Twelve (12) months salary as compensation for unlawful termination
of employment Kshs.6,000. 00 x 12=...........................................Kshs.72,000. 00
iii. 8 hours overtime for 15 days period worked on double
shift between 15th October, 2014 to 30th October, 2014. ...........Kshs.10,488. 00
Total of claim..............................................................................Kshs.88. 488. 00
iv. The respondent be and is hereby ordered to issue a certificate of service to the claimant within fourteen (14) days of this judgement of court.
v. The costs of this claim shall be borne by the respondent
Dated and signed this 29th day of November 2018.
D.K. Njagi Marete
JUDGE
Delivered and signed this 3rd day of December 2018.
Maureen Onyango
PRINCIPAL JUDGE
Appearances
1. Miss Oginda holding brief for Mundia instructed by P. W. Mundia & Company Advocates for the claimant.
2. No appearance for the respondent.