[2018] KEELRC 742 (KLR)
The court found that the claimant was summarily dismissed without notice, a hearing, or valid reason, contrary to the mandatory provisions of the Employment Act. The respondent failed to enter appearance or defend the claim, and the claimant's evidence was uncontroverted. The court held that the dismissal was both...
Source-derived case information.
- Citation
- [2018] KEELRC 742 (KLR)
- Parties
- Claimant: Henry Nyabuto Momanyi; Respondent: The Chairman Board of Management Nyamonyo High School
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Cause 333 of 2015
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- judgment for the claimant
- Judges
- MN Nduma
- Legal Topics
- Unlawful Dismissal, Summary Dismissal, Underpayment of Wages, Compensation for Termination
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Henry Nyabuto Momanyi
Claimant
The Chairman Board of Management Nyamonyo High School
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the claimant's dismissal was unlawful and unprocedural.
- 2 Whether the claimant is entitled to compensation for unlawful dismissal.
- 3 Whether the claimant is entitled to arrears for underpayment of wages.
Ratio Decidendi
The court found that the claimant was summarily dismissed without notice, a hearing, or valid reason, contrary to the mandatory provisions of the Employment Act. The respondent failed to enter appearance or defend the claim, and the claimant's evidence was uncontroverted. The court held that the dismissal was both unlawful and unprocedural. The claimant was also paid below the statutory minimum wage for 53 months, entitling him to arrears. The court awarded compensation equivalent to five months' salary for unlawful dismissal and arrears for underpayment, as well as costs of the suit.
Court Disposition
judgment for the claimant
Orders
- The respondent shall pay the claimant Kshs.31,118 as compensation for unlawful dismissal.
- The respondent shall pay the claimant Kshs.144,350.80 as arrear salary for underpayments over 53 months.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT KISUMU
CAUSE NO. 333 OF 2015
(Before Hon. Justice Mathews N. Nduma)
HENRY NYABUTO MOMANYI....................................................CLAIMANT
VERSUS
THE CHAIRMAN BOARD OF
MANAGEMENT NYAMONYO HIGH SCHOOL.................RESPONDENT
J U D G M E N T
1. The suit was brought vide a Statement of Claim on 8th September, 2015 seeking:-
(i) A declaration that the Claimant’s dismissal was unlawful and an award of damages for the dismissal.
(ii) Payment of underpayments in the sum of Kshs.2,723. 60 per month for 53 months and costs of the suit.
2. The claim is supported by a list of documents; a witness statement by the Claimant filed on the even date, and oral testimony under oath by the Claimant.
3. The Statement of claim and Notice of Summons were served
on the Respondent on 21st September, 2015 and a Return of Service sworn by John Patrick Onyango a duly qualified process server filed on 6th November, 2015.
4. The Respondent did not enter appearance nor file a statement of defence.
5. The matter proceeded to formal proof on 23rd February, 2018.
6. The Claimant has proved the case of unlawful and unprodedural dismissal on a balance of probabilities. The Claimant was employed on 1st October, 2010 as a night watchman and worked diligently and continuously when he was summarily dismissed without notice, notice to show cause or a disciplinary hearing. He was falsely accused of taking poison which allegation he denied.
7. For the 53 months he worked, he was paid Kshs.3,500 per month instead of the minimum statutory wage of Kshs.6,223. 60. The Claimant is entitled to payment in respect of the underpaid salary for the period.
8. The Claimant had served for over four (4) years and is entitled to compensation under section 49(1)(c) of the Employment Act, as read with sub-section (4) for the unlawful dismissal. He wished to continue working; was dismissed for no valid reason; was not paid any terminal benefits including gratuity in terms of security wage order upon dismissal. The Claimant suffered loss and damage. The court awards him five (5) months salary as compensation for the unlawful and unfair dismissal.
9. Payment in lieu of notice is not claimed and is not awarded. Similarly gratuity in terms of security wage order is not claimed and is not awarded.
10. Judgment is entered in favour of the Claimant as against the Respondent as follows:-
i. Kshs.31,118 in compensation for the unlawful dismissal.
ii. Kshs.144,350. 80 arrear salary being underpayments for 53 months.
Total award Kshs.175,468. 60.
iii. Costs of the suit.
Judgment Dated, Signed and delivered this 31st day of October, 2018
Mathews N. Nduma
Judge
Appearances
Mose Nyambega for Claimant
Chrispo – Court Clerk