[2019] KEELRC 1857 (KLR)
The court found that the Claimant's employment was terminated without written notice or reasons, contrary to Section 35(1)(c) of the Employment Act, 2007. The Respondent did not contest the Claimant's evidence. As a result, the court held that the termination was unfair. The Claimant was awarded one month's salary...
Source-derived case information.
- Citation
- [2019] KEELRC 1857 (KLR)
- Parties
- Claimant: Jefferson Kimanthi Sakayo; Respondent: Nanken Builders
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 1292 of 2015
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- Claim allowed in part; judgment for the Claimant.
- Judges
- MSA Makhandia
- Legal Topics
- Unfair Termination, Breach of Contract, Notice Pay, Compensation for Unfair Dismissal, Service Pay
- 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
Jefferson Kimanthi Sakayo
Claimant
Nanken Builders
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the termination of the Claimant's employment was unfair.
- 2 Whether the Claimant is entitled to pay in lieu of notice.
- 3 Whether the Claimant is entitled to compensation for unfair termination.
Ratio Decidendi
The court found that the Claimant's employment was terminated without written notice or reasons, contrary to Section 35(1)(c) of the Employment Act, 2007. The Respondent did not contest the Claimant's evidence. As a result, the court held that the termination was unfair. The Claimant was awarded one month's salary in lieu of notice, compensation equivalent to three months' gross wages for unfair termination, and service pay, as there was no evidence of membership in a pension scheme or the National Social Security Fund. The claim for leave was declined due to lack of evidential foundation.
Court Disposition
Claim allowed in part; judgment for the Claimant.
Orders
- The termination of the Claimant's employment is declared unfair.
- Respondent to pay the Claimant Kshs 9,000 as pay in lieu of notice.
Full Case Text
Judgment text and source record
41 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI
CAUSE NO. 1292 OF 2015
JEFFERSON KIMANTHI SAKAYO..................................CLAIMANT
VERSUS
NANKEN BUILDERS.....................................................RESPONDENT
JUDGMENT
1. The Claimant instituted legal proceedings against the Respondent on 28 July 2015 alleging unfair termination of employment and breach of contract.
2. According to an affidavit of service filed in Court on 14 August 2018, a director of the Respondent called Mr. Nanken was served with Summons on 20 April 2018.
3. The Respondent failed to enter Appearance or file a Response.
4. On 31 October 2018, the Court being satisfied with the service, directed that the Cause proceed to formal proof and the Claimant’s case was taken on 18 March 2019.
5. The Claimant filed submissions on 28 March 2019.
6. The Court has considered the pleadings, evidence and submissions.
Unfair termination of employment
7. The Claimant was employed by the Respondent on 2 May 2012 as a turn boy/mechanic and he served until 2 March 2015.
8. The Claimant’s testimony that he was dismissed by a director of the Respondent without notice or the giving of reasons remain unchallenged.
9. Section 35(1)(c) of the Employment Act, 2007 requires written notice of termination of employment of at least 28 days, unless it is a case of summary dismissal.
10. The Claimant’s testimony on record that no written notice was issued remained uncontested and the Court therefore finds that the termination of the Claimant’s employment was unfair.
Pay in lieu of notice
11. With the conclusion, the Court holds that the Claimant is entitled to the equivalent of 1 month salary in lieu of notice (testimony was that the monthly pay was Kshs 9,000/-).
Compensation
12. The Claimant was employed by the Respondent in 2012 and left in 2015. Considering the 3 year length of service, the Court will award compensation equivalent to 3 months gross wages.
Leave
13. The Claimant did not lay any evidential foundation for this head of claim and it is declined.
Service pay
14. The Claimant sought Kshs 13,500/- on account of service pay.
15. There being no evidence that the Claimant was a member of a pension scheme or National Social Security Fund, the Court will allow the head of claim.
Conclusion and Orders
16. The Court finds and declares that the termination of the Claimant’s employment was unfair and awards him
(a) Pay in lieu of notice Kshs 9,000/-
(b) Compensation Kshs 27,000/-
(c) Service pay Kshs 13,500/-
TOTAL Kshs 49,500/-
17. Claimant to have costs on half scale.
Delivered, dated and signed in Nairobi on this 2nd day of April 2019.
Radido Stephen
Judge
Appearances
For Claimant Mr. Obado instructed by Njogu & Associates Advocates
Respondent did not participate
Court Assistant Lindsey