[2015] KEELRC 668 (KLR)
The court found that the claimant had proved on a balance of probabilities that he worked for the respondent and was not paid terminal benefits due upon resignation. The respondent was properly served but failed to file a defence or attend the hearing. The claim for compensation for wrongful dismissal was dismissed...
Source-derived case information.
- Citation
- [2015] KEELRC 668 (KLR)
- Parties
- Claimant: Francis Okaridi Ojuma; Respondent: Patriotic Guards Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 41 of 2013
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- Claim for wrongful dismissal dismissed; terminal benefits and arrears awarded to claimant.
- Legal Topics
- Wrongful Dismissal, Terminal Benefits, Service Gratuity, Salary Arrears, Nssf Contributions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Francis Okaridi Ojuma
Claimant
Patriotic Guards Limited
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the claimant is entitled to terminal benefits upon resignation from employment.
- 2 Whether the respondent failed to pay the claimant salary arrears and statutory deductions.
- 3 Whether the claim for compensation for wrongful dismissal is merited.
Ratio Decidendi
The court found that the claimant had proved on a balance of probabilities that he worked for the respondent and was not paid terminal benefits due upon resignation. The respondent was properly served but failed to file a defence or attend the hearing. The claim for compensation for wrongful dismissal was dismissed as it lacked basis, but the claims for salary arrears, service gratuity, and refund of unremitted NSSF deductions were allowed. The court awarded the claimant the sums claimed for salary arrears, service gratuity, and NSSF deductions, with interest at court rates from the date of judgment until payment in full, and ordered the respondent to pay costs.
Court Disposition
Claim for wrongful dismissal dismissed; terminal benefits and arrears awarded to claimant.
Orders
- Respondent to pay claimant KES 106,174 as terminal benefits and arrears.
- Award to accrue interest at court rates from date of judgment until payment in full.
Full Case Text
Judgment text and source record
38 paragraphs
REPUBLIC OF KENYA
EMPLOYMENT AND LABOUR RELATIONS COURT OF KENYA
CAUSE NO. 41 OF 2013.
FRANCIS OKARIDI OJUMA….……….CLAIMANT
VERSUS
PATRIOTIC GUARDS LIMITED…….RESPONDENT
Claimant in Person
JUDGEMENT
By a memorandum of claim dated 27th November, 2012 the Claimant seeks compensation for wrongful dismissal and payment of terminal benefits to wit;
Unpaid salary for 7 months at Kshs 6,640 per month in the sum of Kshs 46,480;
11 days worked in October 2011 in the sum of Kshs 2,434,
Balance of salary for December 2009 in the sum of Kshs 2,140,
Balance of salary for April 2011 in the sum of Kshs 1,640;
Service payment for 9 years calculated at 15 days salary for each completed year of service in the sum of Kshs 29,880; and
Unpaid NSSF dues in the sum of Kshs 23,600
Facts of the Case
From the averments in the memorandum of claim and oral testimony by the Claimant, the Claimant resigned from employment by a letter dated 13th October, 2011 and he stopped working.
The Respondent did not file a statement of defence to the memorandum of claim. An affidavit of service sworn to by Charles Mutua Mwanzi, a process server of the High Court of Kenya was filed on 19th March, 2013.
In the Affidavit it is stated that the process server on 30th January 2013, accompanied by the Claimant served the memorandum of claim and notice of summons on the Respondent at their offices located along Mwingi Road direct opposite Gatundu Close, Lavington.
The documents were served on a Mr Kigen, the Managing Director of the Respondent who was well known to the Claimant. Mr Kigen acknowledged receipt by appending his signature on a copy thereof.
An amended statement of claim was also served on the Respondent by the Claimant in person on 29th August, 2014 on one Mr Benson Kiprotich at the offices of the Respondent on Kilimani Road. Mr Kiprotich acknowledged receipt by signing and dating the Claimant’s copy which was returned duly served.
M/s Ndirangu Kamau Advocates entered appearance on behalf of the Respondent but the advocate did not file any statement of defence nor attend the hearing of the case.
The Advocates were served with a mention notice on 6th February, 2013 to attend court on 26th February, 2015 but the Advocates failed to attend court when the court gave the matter a date for formal proof on 7th May, 2015.
The court is satisfied that proper service was effected on the Respondent and the Advocates on record and the Respondent was in default of filing a defence and attending the hearing of the matter without any justification.
The court is also satisfied that the Claimant has proved on a balance of probabilities that he worked for the Respondent as claimed and was not paid terminal benefits due to him upon his resignation from employment on 13th October, 2011 set out in the amended statement of claim dated 30th July, 2013.
The claim for compensation for wrongful dismissal has no basis whatsoever and the same is dismissed with costs.
The court awards the Claimant as follows;
Arrears salary for 7 months in the sum of Kshs 46,480
Unpaid salary for 11 days in October, 2011 in the sum of Kshs 2,434
Balance of salary for December 2009 in the sum of Kshs 2,140
Balance of salary for April 2011 in the sum of Ksh 1,640 and;
Service gratuity for the 9 years worked by the Claimant in the sum of Kshs 29,880; and
Refund of unremitted NSSF deductions in the sum of Kshs 23,600 for the months stated in the amended statement of Claim
Total award is Ksh 106,174/=. The award is payable with interest at court rates from date of this judgement till payment in full.
The Respondent is to pay costs of the suit.
Dated and Delivered at Nairobi this 31st day of July, 2015.
MATHEWS N. NDUMA
PRINCIPAL JUDGE