[2015] KEELRC 1597 (KLR)
The court found that the respondent terminated the claimant's employment without notice, valid reason, or due process, in violation of statutory requirements under the Employment Act. The respondent admitted key facts and failed to specifically deny or rebut the claimant's claims regarding underpayment, gratuity,...
Source-derived case information.
- Citation
- [2015] KEELRC 1597 (KLR)
- Parties
- Claimant: Jesse K. Nderitu; Respondent: Fine Spinners Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 1499 of 2011
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- claim allowed
- Legal Topics
- Unfair Termination, Summary Dismissal, Salary Underpayment, Service Gratuity, Compensation for Dismissal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jesse K. Nderitu
Claimant
Fine Spinners Limited
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the claimant's employment was terminated unfairly and without due process.
- 2 Whether the claimant is entitled to salary underpayment, service gratuity, notice pay, and compensation for unfair dismissal.
- 3 Whether the respondent failed to follow statutory and contractual obligations in terminating the claimant.
Ratio Decidendi
The court found that the respondent terminated the claimant's employment without notice, valid reason, or due process, in violation of statutory requirements under the Employment Act. The respondent admitted key facts and failed to specifically deny or rebut the claimant's claims regarding underpayment, gratuity, and compensation. The court held that the claimant had proved his case on a balance of probabilities and was entitled to salary underpayment for six years, two months' salary in lieu of notice, service gratuity for eight years, and compensation for unfair dismissal. The total award was Kshs.1,284,400.00, with interest at court rates and provision of a certificate of service...
Court Disposition
claim allowed
Orders
- The respondent shall pay the claimant Kshs.46,000.00 as two months' salary in lieu of notice.
- The respondent shall pay the claimant Kshs.896,400.00 for salary underpayment for six years.
Full Case Text
Judgment text and source record
45 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS
COURT OF KENYA AT NAIROBI
CAUSE NO. 1499 OF 2011
JESSE K. NDERITU ……………………………….….. CLAIMANT
VERSUS
FINE SPINNERS LIMITED ……………………….. RESPONDENT
Nyabena for the Claimant
JUDGMENT
1. This matter proceeded ex-parte on 9th October 2014, the hearing date having been taken way back on 16th December 2013.
2. Mrs Mwabure appeared for the respondent and was holding brief for Ms Ngeresa. Mr. Nyabena for Claimant was ready to proceed but the Respondent alleged inability to proceed due to lack of instructions from the respondent.
The Claim is thus undefended.
3. The Claimant testified in support of the particulars of claim contained in a statement of claim dated 6th September 2011 and filed on 7th September 2011.
4. Though the Respondent did not participate in the hearing, had already filed a Statement of Defence dated 4th October 2011.
Facts of the claim
5. The Claimant was employed by the Respondent as a Production Supervisor in September 2001 earning a basic salary of Kshs.330. 00 per day.
He was given a letter of appointment accordingly.
The Claimant was confirmed in this position in May 2004, and his salary was raised to Kshs.8,500. 00 plus house allowance.
This was later increased to Kshs.10,550. 00 per month, which salary the Claimant earned at the time of termination of employment on 1st January 2010.
6. The termination was without notice and no reason was assigned for the termination. The Claimant was simply stopped at the gate when reporting to work in the morning and told the employment had ceased with immediate effect.
7. The Claimant states that he was paid a salary that was less than that earned by the subordinates he supervised who were unionsable. The Claimant avers that he ought to have been paid Kshs.23,000. 00 per month instead of Kshs.10,550. 00. He thus claims a monthly underpayment of Kshs.12,450. 00 for six years in the sum of Kshs.896,400. 00.
8. He claims two (2) months salary in lieu of notice in the sum Kshs.46,000. 00.
9. Further claim is for service gratuity calculated at twenty (20) days salary for eight (8) years in the sum of Kshs.112,000. 00.
10. Further, the Claimant seeks twelve (12) months compensation for the unlawful and unfair dismissal in the sum of Kshs.276,000. 00 and grant of certificate of service.
11. The Claimant wrote a demand letter upon termination but the Claim was not made good. The Claimant prays to be awarded as prayed.
12. In the Statement of Defence, Respondent admits the particulars of employment set out in paragraphs 3 and 4 of the Statement of claim.
13. The Respondent admits terminating the employment of the Claimant without assigning any reason for the termination.
14. The Claimant admits receiving the notice of demand from the Advocates for the Claimant adding that the Claimant took six months to provide the details for computation of the terminal dues contained in the letter of 30th March 2011.
15. The Respondent does not specifically deny the contents of this letter which contains the Claims set out by the Claimant in his Statement of Claim.
16. The Respondent admits that it has failed to pay the Claimant as demanded. Determination
17. A perusal of the pleadings leads the Court to the conclusion that the particulars of claim contained in paragraph 8 of the Statement of Claim are not specifically denied.
18. The Respondent made a general denial of the contents of paragraph 6, 7 and 8 of the statement of claim and called no evidence at all to clarify the matter.
19. The Court finds that the Claimant has on a balance of probabilities proved the particulars of claim with regard to the terminal dues owed to him by the Respondent and awards the Claimant as follows;
(i) two (2) months salary in lieu of notice in the sum of Kshs.46,000. 00;
(ii) salary underpayment for six (6) years in the sum of Kshs.896,400. 00;
(iii) service gratuity for eight (8) years in the sum of Kshs.112,000. 00.
20. Furthermore, the Claimant has established that his employment was terminated without notice and with no valid reason assigned to it. The claimant was also not subjected to a disciplinary hearing and the termination was therefore in terms of an unfair procedure. He was simply locked out of the work premises.
21. The Court awards the Claimant in terms of Section 49(1) as read with Section 49(4) ten (10) months salary as compensation for the unlawful and unfair termination of employment in the sum of Kshs.230,000. 00.
The total Award to the Claimant is Kshs.1,284,400. 00.
The award is payable with interest at Court rates from date of this judgment till payment in full.
The Claimant is also to be provided with a certificate of service within fourteen (14) days from todate.
The Claimant is awarded costs of the suit.
Dated and Delivered this at Nairobi this 8th day of May 2015.
MATHEWS N. NDUMA
PRINCIPAL JUDGE