[2015] KEELRC 553 (KLR)
The court found that the claimant was an employee of the respondent and that his termination was effected without any valid reason or adherence to due process as required by Section 45 of the Employment Act. The respondent failed to appear or provide any evidence to justify the termination. Consequently, the court...
Source-derived case information.
- Citation
- [2015] KEELRC 553 (KLR)
- Parties
- Claimant: Francis Mwina Kimatu; Respondent: General Industries Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 809 of 2014
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- claim allowed in part
- Judges
- HS Wasilwa
- Legal Topics
- Unfair Termination, Compensation for Dismissal, Procedural Fairness, Notice Pay
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Francis Mwina Kimatu
Claimant
General Industries Limited
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the claimant's termination was unfair and without valid reason.
- 2 Whether the claimant is entitled to compensation for unlawful termination.
- 3 Whether the claimant is entitled to notice pay and a certificate of service.
Ratio Decidendi
The court found that the claimant was an employee of the respondent and that his termination was effected without any valid reason or adherence to due process as required by Section 45 of the Employment Act. The respondent failed to appear or provide any evidence to justify the termination. Consequently, the court held that the termination was unfair and unjustified, entitling the claimant to compensation equivalent to 12 months' salary and one month salary in lieu of notice. The claim for severance pay was denied as the claimant was not declared redundant. The court also ordered the respondent to issue a certificate of service and pay the costs of the suit.
Court Disposition
claim allowed in part
Orders
- The claimant is awarded 12 months' salary as compensation for unlawful termination, totaling KES 145,764.
- The claimant is awarded one month salary in lieu of notice, totaling KES 12,147.
Full Case Text
Judgment text and source record
35 paragraphs
REPUBLIC OF KENYA
EMPLOYMENT AND LABOUR RELATIONS COURT
ATNAIROBI
CAUSE NO. 809 OF 2014
(Before Hon. Justice Hellen S. Wasilwa on 20th August, 2015)
FRANCIS MWINA KIMATU..................................CLAIMANT
VERSUS
GENERAL INDUSTRIES LIMITED................RESPONDENT
JUDGMENT OF THE COURT
1. The Claimant herein Francis Mwina Kimatu filed his Memorandum of Claim on 15/5/2014 through the firm of Kiarie, Kabita, Kihunyu & Associates. It is the Claimant’s case that he was employed by the Respondent as a casual worker in 2006 and was promoted to position of a general worker on 1st February, 2010.
2. The Claimant annexed his contract of employment as Appendix 1 which shows that he was employed as a general worker with effect from 1st February, 2012 to 31st January, 2013. The contract was renewable subject to work performance. His salary was 8,193/= basic, Kshs.1,229/= house allowance and 1,400/= leave travelling allowance. His August, 2013 payslip – Appendix 4 shows that his gross pay was 12,201. 46/= and this is an indication that the contract was extended beyond January, 2013.
3. The Claimant avers that on 20/9/2013, he worked upto the end of the day and then the HR Manager informed him that his services were no longer required. Before this, the Claimant had been on some leave for 10 days and on resuming is when he was terminated. He was not given any letter of termination nor was he given any reasons for the same. He seeks to be paid as per his Memorandum of claim.
4. The Respondents were served with the Memorandum of claim on 27/5/2014. They didn’t file any response nor any appearance. This case therefore proceeded exparte.
5. The Claimant has adduced evidence to show he was an employee of the Respondent. The manner of termination is not explained. Without any evidence to the contrary, the Claimant has proved that he was terminated without any reasons and without due process as envisaged under Section 45 (1) and 2) which states as follows:
1. No employer shall terminate the employment of an employee unfairly.
2. A termination of employment by an employer is unfair if the employer fails to prove:
a.that the reason for the termination is valid;
b.that the reason for the termination is a fair reason:-
i.related to the employee’s conduct, capacity or compatibility; or
ii.based on the operational requirements of the employer; and
c.that the employment was terminated in accordance with fair procedure.
6. I therefore find the termination was unfair and unjustified and I find for Claimant and order as follows:
1. That the Claimant be paid 12 months salary as compensation for unlawful termination =
12 X 12,147 = 145,764/=
2. 1 month salary in lieu of notice = 12,147/=
TOTAL = 157,911/=
3. Claim for severance pay is not payable as the claimant was not declared redundant.
4. The Claimant be issued with a Certificate of Service.
5. The Respondent will also meet costs of this suit.
Read in open Court this 20th day of August, 2015.
HON. LADY JUSTICE HELLEN WASILWA
JUDGE
In the presence of:
No apperance for Respondent
Kihunju holding brief for Kabita for Claimant