[2018] KEELRC 570 (KLR)
The court found that the claimant was dismissed without being given a hearing as required under Section 41 of the Employment Act. Although the respondent paid the claimant his terminal dues, including notice pay and accrued leave, the failure to provide a hearing rendered the dismissal procedurally unfair. The only...
Source-derived case information.
- Citation
- [2018] KEELRC 570 (KLR)
- Parties
- Claimant: John Baragu Ngari; Respondent: Laikipia Comfort Hotel Ltd
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Cause 404 of 2017
- Procedural Posture
- Employment Claim / Judgment
- Outcome
- Judgment for the claimant.
- Judges
- AN Makau
- Legal Topics
- Unfair Termination, Summary Dismissal, Compensation for Dismissal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Baragu Ngari
Claimant
Laikipia Comfort Hotel Ltd
Respondent
Procedural Posture
Employment Claim / Judgment
Legal Issues
- 1 Whether the claimant's dismissal was unfair for lack of a hearing as required by law.
- 2 Whether the claimant is entitled to compensation for unfair dismissal.
Ratio Decidendi
The court found that the claimant was dismissed without being given a hearing as required under Section 41 of the Employment Act. Although the respondent paid the claimant his terminal dues, including notice pay and accrued leave, the failure to provide a hearing rendered the dismissal procedurally unfair. The only outstanding remedy was compensation for unfair dismissal, which the court awarded as three months' salary. Costs of the suit were also awarded to the claimant.
Court Disposition
Judgment for the claimant.
Orders
- The respondent shall pay the claimant Kshs. 120,000 being three months' salary as compensation for unfair dismissal.
- The respondent shall pay the costs of the suit.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT & LABOUR RELATIONS COURT OF KENYA AT NYERI
CASE NO. 404 OF 2017
JOHN BARAGU NGARI..........................................................CLAIMANT
VERSUS
LAIKIPIA COMFORT HOTEL LTD................................RESPONDENT
JUDGMENT
1. The Claimant was employed by the Respondent as a general manager from 7th January 2015 till 14th May 2017 when he was dismissed. He asserts that the dismissal was uncalled for and that it took place without adherence to the dictates of the law as he was not heard in his defence before the dismissal. He thus sought payment in lieu of leave for 2016, accrued off days for the year 2015, 2016 and 2017, overtime for 2015 and 2016, gratuity for 2 years, 3 months salary in lieu of notice, 2 months severance pay, 12 days accrued leave in 2017 and 15 days worked in May 2017 less the sum of Kshs. 136,920/- paid. He also sought compensation for the dismissal, costs of the suit plus interest.
2. The Respondent filed a defence in which it averred that the Claimant was not entitled to the claims in his suit. It was averred that the termination did not breach the Constitution of Kenya or the Employment Act. The Respondent averred that the Claimant was paid his terminal dues being the 15 days he worked in May 2017, the service dues for the 2 complete years (2015-2016), accrued leave for 2016/2017, and one month salary in lieu of notice.
3. The Claimant and Anthony Kinyanjui for the Respondent testified. The evidence was that the Claimant was dismissed due to performance related issues. The Claimant was issued with a summary dismissal letter which did not give the Claimant notice. He was not given a hearing in terms of Section 41 of the Employment Act. He was however paid his dues including notice pay and the only remedy he has is the matter of compensation for the dismissal as the leave dues and the service pay were made. He would be entitled to recover on 3 months salary as compensation. He will also have costs of the suit on this sum. In the final analysis I enter judgment for the Claimant against the Respondent for:-
a. Kshs. 120,000/- being 3 month’s salary as compensation
b. Costs of the suit
It is so ordered.
Dated and delivered at Nyeri this 22nd day of November 2018
Nzioki wa Makau
JUDGE