[2014] KEELRC 1465 (KLR)
The court found that the claimant intended to retire and communicated this intention in writing, which was acknowledged by the respondent's witness. The evidence did not support the respondent's claim of abscondment. However, since the claimant was a member and contributor to the NSSF, he was not entitled to service...
Source-derived case information.
- Citation
- [2014] KEELRC 1465 (KLR)
- Parties
- Claimant: Jafeth Angolo Matang; Respondent: Surji Singh
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Cause 9 of 2013
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- Claim dismissed; no terminal dues awarded.
- Judges
- HS Wasilwa
- Legal Topics
- Unlawful Dismissal, Retirement Due to Age, Service Pay Entitlement, Nssf Contributions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jafeth Angolo Matang
Claimant
Surji Singh
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the claimant retired, was dismissed, or absconded duty.
- 2 Whether the claimant is entitled to any terminal benefits or remedies.
Ratio Decidendi
The court found that the claimant intended to retire and communicated this intention in writing, which was acknowledged by the respondent's witness. The evidence did not support the respondent's claim of abscondment. However, since the claimant was a member and contributor to the NSSF, he was not entitled to service pay under Section 35(6) of the Employment Act, 2007. The claimant also failed to prove any entitlement to underpayment or other terminal dues, as no evidence was provided regarding wage orders or actual salary entitlements. Consequently, the court held that no terminal dues were owed to the claimant, and each party was to bear its own costs.
Court Disposition
Claim dismissed; no terminal dues awarded.
Orders
- Claimant to collect dues from NSSF as entitled.
- Each party to bear its own costs.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE INDUSTRIAL COURT OF KENYA AT KISUMU
CAUSE NO. 9 OF 2013
(Before Hon. Justice Hellen S. Wasilwa on 10th November, 2014)
JAFETH ANGOLO MATANG ...............................................CLAIMANT
-VERSUS-
SURJI SINGH …........................................................... RESPONDENTS
JUDGMENT
The claimant filed his claim on 21. 1.2013 through the firm of Wanjiku Mwaura & Co. Advocates claiming unlawful dismissal. It is the claimant's case the he was employed by the respondents from January 1998 as a metal turner earning a salary of Kshs 8,000/= per month. He annexed his NSSF statement as proof that he was employed by the respondents who used to remit NSSF contributions to the Fund.
The claimant avers that he worked for respondents well until 2010 when he wrote the respondents a letter seeking to retire due to age (App-2). The respondents however refused to grant the claimant's request and instead locked him out of work and also never paid him his retirement dues. The claimant claims that he used to work from 7. 30 am to 6 pm and was not paid any overtime and never went on leave. His salary was Kshs 9,000/= per month as per App-3. His advocate wrote to respondents a demand letter in respect of the dismissal (App-4). He states that he was unfairly terminated and seeks to be paid terminal benefits as enumerated in his claim.
In cross examination the claimant stated that he has no certificate of training. He denies he was given a loan of Kshs 100,000/=. He wrote a letter asking to retire on 30. 8.2010 and also wrote another letter to personnel on 30. 7.2011. He had been on duty all along. His last day on duty was December 2010 and he states that he didn't earn from September 2010. In December 2010, the respondents ordered the watchmen to lock him out. He states that he was employed in 1993.
The respondents filed their reply to defence on 3. 5.2013 through the firm of Otieno Ragot & Co. Advocates. They also called 2 witnesses whose contention is that the claimant worked for the respondents as a guard and he stayed in their compound. He last came to work on 13. 9.2010. They deny chasing him away. RW2 admits that claimant asked to be retired in September 2010 and he kept coming asking for his dues on retirement but he was told he couldn't be paid because he absconded.
Having heard both parties, the issues for determination are:-
Whether claimant retired or was dismissed or absconded.
Whether claimant is entitled to any remedies.
On 1st issue App-IIin claimant's list is a letter dated 30. 8.2010, where claimant sought to retire with effect from 15. 9.2010 citing his age. In the meantime, it appears he ceased working for respondents after this period as his letters indicate so. The respondents aver he absconded duty and RW2 states that he absconded duty and that is why he was not paid his dues. The RW2 also stated that he was aware the claimant wanted to retire and he admitted that the last time he worked was in September 2010 and then he kept coming asking for his dues.
The evidence of RW1 and RW2 seem contradictory with one stating that the issue of retirement was not known and the other stating otherwise. The finding of this court is that the claimant intended to retire from duty and he wrote a letter to that effect which RW2 is aware of. The issue of absconding duty does not arise.
Having retired from duty due to his apparent old age was the claimant entitled to any benefits. The claimant worked for respondents from 1998 as a metal turner. It is evident that claimant was a member and contributor of NSSF and so by virtue of S. 35(6) of Employment Act 2007, he is not entitled to payment of service pay. The claimant is therefore allowed to collect his dues from NSSF. He however sought to be paid underpayment of salary for 12 years. The claimant has however not established how much he was earning as against wages orders. No evidence is adduced before court as proof of his actual entitlement. I therefore find that the claimant though having retired, there are no terminal dues owed which are proved and I therefore award no amounts. Each party shall bear it's costs.
HELLEN S. WASILWA
JUDGE
10/11/2014
Appearances:-
Ochuka for claimant
Owino for respondents
CC. Wamache