[2018] KEELRC 337 (KLR)
The court found that the claimant had established, on a balance of probabilities, his entitlement to salary arrears for May to September 2002, 12 days of pending leave, pension for five months, outstanding travelling allowance, and one month’s notice pay. The court rejected claims for three months’ notice, severance...
Source-derived case information.
- Citation
- [2018] KEELRC 337 (KLR)
- Parties
- Claimant: James Mponda Mbotela; Respondent: Alliance Group Management Company Ltd t/a Alliance Hotels and Resort
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 690 of 2014
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- judgment for the claimant
- Judges
- B Ongaya
- Legal Topics
- Wrongful Termination, Terminal Benefits, Salary Arrears, Pension Entitlement, Notice Pay, Leave Entitlement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
James Mponda Mbotela
Claimant
Alliance Group Management Company Ltd t/a Alliance Hotels and Resort
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the termination of the claimant's employment was illegal, wrongful, and unlawful.
- 2 Whether the claimant is entitled to terminal benefits and dues as claimed.
- 3 Whether the claimant is entitled to costs and interest.
Ratio Decidendi
The court found that the claimant had established, on a balance of probabilities, his entitlement to salary arrears for May to September 2002, 12 days of pending leave, pension for five months, outstanding travelling allowance, and one month’s notice pay. The court rejected claims for three months’ notice, severance pay, and unremitted cooperative money due to lack of contractual or evidentiary basis. The respondent’s failure to call evidence left the claimant’s testimony unchallenged. The court thus awarded the claimant Kshs. 483,501.00, costs, and interest, finding the termination wrongful in the sense of non-payment of terminal dues, though not establishing redundancy or entitlement to...
Court Disposition
judgment for the claimant
Orders
- The respondent shall pay the claimant Kshs. 483,501.00 by 31.01.2019, failing which interest shall accrue at court rates from the date of filing until full payment.
- The respondent shall pay the costs of the suit.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF KENYA AT NAIROBI
CAUSE NO. 690 OF 2014
(Formerly CMCC No. 13486 of 2005)
JAMES MPONDA MBOTELA.................................................CLAIMANT
VERSUS
ALLIANCVE GROUP MANAGEMENTCOMPANY
LTD T/A ALLIANCE HOTELS AND RESORT................RESPONDENT
(Before Hon. Justice Byram Ongaya on Friday 14th December, 2018)
JUDGMENT
The claimant filed a plaint on 14. 12. 2005 through Lumumba Mumma & Kaluma Advocates. The claimant prayed for judgment against the respondent for:
a) A declaration that the termination of the plaintiff’s employment with the defendant was illegal, wrongful and unlawful.
b) Terminal benefits and dues.
c) Costs of the suit.
d) Interest on (b) and (c).
The claimant’s case was that the respondent employed him as an accounts clerk on 28. 08. 1980 and he was wrongfully and unlawfully dismissed on 26. 11. 2002. The claimant claimed accrued and terminal dues, and damages for wrongful dismissal from employment.
The defence was filed on 07. 03. 2006 through Gathaiya & Associates. The defendant admitted that it employed the claimant as claimed but that the claimant had no sustainable claim against it for accrued and terminal dues and damages for wrongful dismissal.
The claimant filed the memorandum of claim on 22. 05. 2014 through Lumumba & Lumumba Advocates particularising his claim and the respondent filed the defence on 09. 07. 2014 opposing the claims.
The claimant testified that he worked for the respondent for 22 years and as at termination he earned Kshs. 50, 695. 00 per month. The claimant testified that on 26. 11. 2002 he reported on duty and in the early afternoon the respondent’s company secretary one Obadiah Kavivia summoned the claimant and handed to the claimant the dismissal letter. The claimant read it and was told to handover. The dismissal letter promised payment of salary up to 26. 11. 2002 and leave days not taken. The salary was paid on 23. 12. 2018. 12 days of leave translated to Kshs. 27, 200. 00. He also testified that he claimed salary arrears for May, June, July, August, and September 2002 making Kshs. 246, 853. 30. He testified that he claimed contributory pension at Kshs. 3, 025. 00 per month for the 5 months of salary arrears making Kshs.15, 125. 00. He further testified that he was entitled to travelling allowance at Kshs.9, 000. 00 which was paid separately as agreed and approved and part of it had been paid and as at termination the outstanding amount was Kshs. 143, 628. 00. He further testified that he claimed pay in lieu of notice at 3 months as reasonable notice and at a gross pay of Kshs. 53, 695. 00 per month inclusive Kshs. 3, 025. 00 per month in pension. He testified that he was abruptly terminated so that he was entitled to 15 days for each of the 22 years served in severance pay. Further, Kshs. 3, 120. 00 NSSF had not been contributed per the statement on record.
The respondent did not call a witness and the court returns that in absence of any other material evidence, the only issue for determination is whether the claimant is entitled to the remedies as prayed for. The Court returns that on a balance of probabilities the claimant has established that by his own evidence he is entitled as follows:
a) Salary for May to September Kshs. 246, 853. 30.
b) 12 days pending leave days Kshs. 27, 200. 00.
c) Pension for 5 months Kshs. 15, 125. 00.
d) Travelling allowance Kshs. 143, 628. 00.
e) One month notice in lieu of termination notice Kshs. 50, 695. 00. (The Court finding that the 3 months as claimed appear not to have contractual basis.)
f) Service or severance pay was not established as justified as it lacked contractual basis, there was alternative pension provision and the claimant confirmed that he was not severed or rendered redundant.
g) Cooperative money not remitted was not explained or justified and will fail.
In conclusion judgment is hereby entered for the claimant against the respondent for:
a) Payment of Kshs. 483, 501. 00 by 31. 01. 2019 failing interest to be payable thereon at Court rates from the date of filing of the plaint till full payment.
b) The respondent to pay costs of the suit.
Signed, datedand deliveredin courtat Nairobithis Friday 14th December, 2018.
BYRAM ONGAYA
JUDGE