[2018] KEELRC 1550 (KLR)
The court found that the claimant's employment was terminated unfairly while he was on sick leave, without notice or a hearing, and without a valid reason as required by the Employment Act, 2007. The respondent did not oppose the suit or provide any justification for the termination. The court applied statutory...
Source-derived case information.
- Citation
- [2018] KEELRC 1550 (KLR)
- Parties
- Claimant: Isaac Lichuma Okhako; Respondent: Hatari Security Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 1158 of 2013
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- judgment for the claimant
- Judges
- B Ongaya
- Legal Topics
- Unfair Termination, Sick Leave Entitlements, Severance Pay, Notice Pay, Accrued Leave, Redundancy
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Isaac Lichuma Okhako
Claimant
Hatari Security Limited
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the claimant's employment was unlawfully terminated while on sick leave.
- 2 Whether the claimant is entitled to pay in lieu of notice, salary arrears, severance pay, accrued leave, uniform fees, and other reliefs as prayed.
Ratio Decidendi
The court found that the claimant's employment was terminated unfairly while he was on sick leave, without notice or a hearing, and without a valid reason as required by the Employment Act, 2007. The respondent did not oppose the suit or provide any justification for the termination. The court applied statutory provisions entitling the claimant to pay in lieu of notice, salary for October 2012, severance pay due to redundancy, accrued leave, and recovery of uniform fees. Claims for holidays pay and overtime were declined due to lack of evidence. The court awarded the claimant a total sum of Kshs.25,275.00 plus costs and interest if not paid by the stipulated date.
Court Disposition
judgment for the claimant
Orders
- The respondent to pay the claimant Kshs.25,275.00 by 01.09.2018, failing which interest is payable from the date of judgment until full payment.
- The respondent to pay costs of the suit.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF KENYA AT NAIROBI
CAUSE NO. 1158 OF 2013
ISAAC LICHUMA OKHAKO..................CLAIMANT
- VERSUS -
HATARI SECURITY LIMITED..........RESPONDENT
(Before Hon. Justice Byram Ongaya on Thursday 12th July, 2018)
JUDGMENT
The claimant filed the statement of claim on 23. 02. 2013 through Owaga & Associates and prayed for judgment against the respondent for:
a) Payment of Kshs.108, 525. 00 being pay in lieu of notice Kshs.7, 500. 00; pay for October 2012 Kshs.7, 500. 00; severance pay Kshs.3, 750. 00; accrued leave for 1 years 10 months Kshs.9, 625. 00; holidays pay Kshs.3,750. 00; overtime pay Kshs.72, 000. 00; and uniform fees Kshs.4, 400. 00.
b) General damages for loss, pain and suffering.
c) Costs of the suit plus interest.
d) Any other relief that the Court may deem fit to grant.
The claimant pleaded that he was employed by the respondent from January 2011 to October 2012 when his employment was unlawfully terminated while he was on sick leave. It was the claimant’s case that the termination was without notice and a hearing.
Githinji Mwangi & Associates entered appearance for the respondent on 16. 12. 2014 but filed no defence. The Court finds that the suit was not opposed.
The claimant testified that on 26. 10. 2012 he fell sick. As was the respondent’s practice on permission, he notified the control room and was given a few days off. He was on sick leave for 4 days. Upon resuming duty, he was dismissed. His salary had been unilaterally reduced by the respondent from Kshs.12, 000. 00 to Kshs.7, 500. 00 per month despite promotion from a Rider Supervisor to Commander. He had served throughout without leave and without offs including working on public holidays.
As submitted for the claimant, under section 30(1) of the Employment Act, 2007 the claimant was entitled to pay during sick leave up to 7 days of sick leave. Further there was no valid reason advanced for the termination as per section 43 and 45 (2) of the Act. The Court finds that the termination was unfair.
For the remedies prayed for the Court makes findings as follows:
a) The claimant is entitled to pay in lieu of notice Kshs.7, 500. 00 per section 35 of the Act.
b) The claimant is awarded pay for October 2012 Kshs.7, 500. 00.
c) The claimant is awarded severance pay Kshs.3, 750. 00 as he was told there was no job but he would be recalled which amounted to redundancy. He is awarded per section 40 of the Act.
d) He is entitled to accrued leave for 1 year 10 months Kshs.9, 625. 00 as prayed for under section 28 of the Act.
e) His testimony was that he worked on holidays without holidays’ pay but no evidence and computation of the claim was provided and the prayer is declined.
f) There was no evidence and basis for overtime pay Kshs.72, 000. 00 and the prayer is declined as unjustified.
g) The claimant is entitled to recover uniform fees Kshs.4, 400. 00.
In conclusion judgment is entered for the claimant against the respondent for:
a) The respondent to pay the claimant a sum of Kshs.25, 275. 00 by 01. 09. 2018 failing interest to be payable thereon from the date of the judgment till full payment.
b) The respondent to pay costs of the suit.
Signed, dated and delivered in court at Nairobi this Thursday 12th July, 2018.
BYRAM ONGAYA
JUDGE