[2018] KEELRC 118 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF KENYA AT NAKURU

CAUSE NO.3 OF 2015

FREDRICK WANJALA WANYAMA........................................CLAIMANT

VERSUS

SOUTH NYANZA SUGAR COMPANY LIMITED............RESPONDENT

JUDGEMENT

1. Background – the claimant field the Memorandum of Claim on 15th January, 2015 and amended the same on 27th February, 2017. The respondent filed defence on 15th March, 2015.

2. On 7th June, 2018 parties attended court for fixing hearing dates. By consent hearing date was allocated for the 18th October, 2018. On the due date, the respondent did not attend. The claimant as heard on his case and the hearing closed.

claim

3. On 16th May, 2012 the claimant was employed by the respondent as a Security Manager, Grade SE3.

4. On 10th October, 2014 the claimant was interdicted from employment vide letter of equal date without prior warning. The claimant lodged an appeal but there was no fair hearing.

5. The claim is that the respondent without making detailed inquiries and without sufficient cause interdicted the claimant. This was unfair as the claimant was denied a chance for a hearing and despite appeal, there was no consideration. this has caused the claimant loss of his credibility and his chances of securing new employment. He is unable to secure new employment.

6. The claimant is seeking compensation in the following dues;

(a) Retained half Salary due since October 2014 to January 2016 at Ksh.94,580. 00 per month Ksh.1,357,680. 00;

(b) Salary annual increment @ 15% effective 1stJuly of every year;

(c) Medical expenses allowance inpatient Ksh.1,210,000. 00;

(d) Outpatient Ksh.200,000. 00;

(e) House allowance Ksh.15,000. 00 per month

(f) Telephone allowances Ksh.5,500. 00;

(g) Extraneous allowance Ksh.10,000. 00;

(h) Transport allowance Ksh.10,700. 00;

(i) General damages;

(j) Costs of the suit;

(k) Interests.

7. The claimant testified that in the last 28 years he has worked in the security sector offering his services to different employers. The respondent appointed him as security manager and was issued with a letter of appointment and was also regulated with workplace policy.

8. In July, 2014 the respondent called for tenders for bidders for spares ad scrap metal and in August, 2014 a company was found collecting stealing scrap metals in the respondent company premises. As this was part of the claimant’s duties to secure the premises he intercepted the events and made a report on 27th august, 2014. Following such intervention, the claimant was arrested as a suspect.

9. One tenderer was not happy with the investigations undertaken by the claimant. That he should have been allowed to collect scrap metals. The report was made to the manager.

10. On 10th October, 2014 the claimant was issued with a notice to show cause on allegations that he was working in cohorts with a colleague to solicit for bribes. The claimant was then interdicted. While on interdiction the claimant learnt that the respondent conducted an investigations but the claimant was not informed or involved. The next time the claimant received communication from the respondent was vide letter and notice dated 19th January, 2016, a letter terminating his employment.

11. The claimant also testified that the respondent was ISO certified and with it they had a staff administration code setting out various procedures to address disciplinary matters. An interdiction was required to be for 28 days. Such time for the claimant lapsed but nothing was done.

12. The claimant was also called as prosecution witness in Migori Criminal Case No.690 of 2014where Ojuok Ogutu Paul was charged following theft of scrap metals at the respondent company. Matters leading tot eh claimant’s interdiction were therefore investigated and the one culpable arrested and convicted.

13. During the interdiction the claimant remained on half pay and the balance has not been paid. Since termination of employment the claimant has made effort to secure new employment but every time there is reference to the respondent, such prospects are curtailed. The claimant secured employment but this was at a lower pay and before confirmation, reference to the respondent resulted in termination of the same.

14. During the period of interdiction, the claimant’s wife sought medical service and when she produced the medical card this was declined and caused the claimant great embarrassment, loss and damage. He claims for his medical allowances and the unpaid dues.

Defence

15. In response the respondent has denied all allegations made by the claimant that he was employed as Security manager from 16th May, 2012 to 10th October, 2014 as at the time of filing suit he was still an employee of the respondent. the claimant was discharged from his duties in accordance with the employment agreement and he had no complaint. The allegation that employment terminated on 10 th October, 2014 is not correct.

16. On without prejudice the defence is also that the claimant’s employment was not terminated as alleged and at the time of filing the claim he was still the employee of the respondent. the claimant was interdicted as per the guidelines of handling cases of public officers who are suspected of involvement in corrupt practices and that the said disciplinary case is still pending. The claims thus made by the claimant are without justification.

17. No evidence was called as the respondent was absent at the hearing. Determination

18. As noted above, the claimant filed the Memorandum of Claim on 15th January, 2015. The respondent filed defence thereto on 15th March, 2015.

19. On 27th January, 2016 the claimant filed application and Notice of Motion dated 26th January, 2016 and seeking for orders that the respondent’s decision dismissing his employment be stayed and an order restoring employment be issued and the respondent be compelled to return the claimant to his position.

20. The basis and grounds of this application were set out by the claimant that his employment had been terminated during the pendency of this case. That such action was not justified.

21. This application was not addressed.

22. On 20th February, 2017 parties attended court and the claimant applied to be allowed to amend the memorandum of claim which was allowed. Such Amended Claim was filed on 27th February, 2017.

23. The commencement of the claim herein on 15th January, 2015 was on the grounds that on 10th October, 2014 the claimant was interdicted from his employment by the respondent. the claimant at paragraph 7 avers that his employment was unfairly terminated. The remedies sought are for the due salary, annual increments, medical expenses, notice pay , allowances and general damages.

24. These allegations were denied by the respondent noting employment had not terminated and the claimant had been paced on interdiction following allegations of corruption. That as a public officer such action was justified but employment had not terminated.

25. In the amended claim the claimant at paragraphs 5, 8, 9, 10 and 11 amended the claim of dismissal to that of interdiction. That since his interdiction from 10th October, 2014 he was unfair treated by the respondent. the remedies sought are that he should be paid the half salary not paid during interdiction, annual increments, allowances, and damages for unlawful interdiction, an order of reinstatement, general damages and costs.

26. The amended claim dated 27th February, 2017.

27. There is no reply to the Amended Claim.

28. Upon the court allowing the amendment of the claim on 24th March, 2017 the respondent was to be served and to reply. I have perused the entire record, there is no evidence of service of the Amended Memorandum of Claim.

29. Despite respondent being served with the haring notices, there is no notice on the amended claim.

30. The above put into account, the claimant testified that his employment was terminated vide letter dated 19th January, 2016. The basis of the claim for reinstatement, payment of terminal dues as set out in the claim filed on 15th January, 2015 and amended on 27th February, 2017 is thus lost. The claim as filed is premature and the orders sought cannot be allowed on the basis that the cause of action with regard to the remedies sought, the evidence by the claimant had not arisen as at 15th January, 2015.

31. Where employment terminated on 16th January, 2016 The substance of the claims made and the evidence on record are at variance. Such cannot form the basis of the orders sought.

32. Despite defence being filed, there was no evidence called by the respondent.

Accordingly, the claim herein is struck out. No orders to costs.

Dated and delivered in open court at Nakuru this 22nd of November, 2018.

M. MBARU

JUDGE

In the presence of: ……………………………….. ……………………………….